People often approach divorce with concerns about drawn-out courtroom battles, but the there are concrete, smart steps that can be taken to avoid that scenario. One alternative that merits consideration is mediation, which we regularly facilitate in our law office.
What is mediation?
Traditionally, before divorcing spouses go to court they try to negotiate a settlement through their respective lawyers. If they cannot agree on all the issues like property division, spousal support, child custody and more, then the judge will have to decide those issues in trial.
A modern alternative to this scenario, which works well for many, is mediation. In mediation, a neutral third party is retained to facilitate communication and compromise between the divorcing parties with a goal of reaching agreement on the legal issues in the divorce. Mediators are specially trained to communicate to facilitate dispute resolution. Mediators can assist the parties to handle stress and emotions, understand what is at stake and what compromise may be acceptable. Mediators assist in negotiations between spouse in order to reach an acceptable resolution.
A mediator is not a judge and will not make final decisions on legal issues. His or her job is to help the parties come to agreement on those issues. It is also important to understand that mediation proceedings are confidential.
It is a good idea for the parties to mediation in divorce to each have a lawyer so that they can get legal advice and input from their own advocates throughout the process. A mediator cannot give legal advice to either party.
When parties can reach agreement through mediation, it is written up and submitted to the court to be finalized. Sometimes agreement may be reached on one or more issues, but not all. In that case, an agreement can be made on the resolved matters and the judge can decide the rest.
In Colorado mediation is usually required by the court.
At our law firm, we represent clients going through mediation. In addition, we can act as the mediator in divorces when we do not represent either of the parties.
When should mediation be considered?
Mediation has several benefits in the right circumstances. If the parties can make steady progress and are open to debate, compromise and creativity, the experience can be less stressful for the divorcing spouses as well as for their children, if any. Unique solutions to legal problems can be found that might not have occurred to a judge or even be possible through the court process
The parties tend to come out on the other side feeling that they had some control over the outcome. After all, when it comes down to it, while an experienced lawyer can speculate with some certainty how a judge will rule on an issue, it is impossible to be sure.
Some people prefer the privacy of mediation over the more public forum of a courtroom. The process is often faster than a court trial as well.
Finally, when children are involved, mediation may help preserve mutual respect and dignify the parental relationship since the parties may need to co-parent for some time after the divorce is over.
What can make mediation less favorable?
Mediation is not right for everyone. For example, Colorado law may not permit mediation if there is a history of physical or emotional abuse between the parties.
It is worth trying mediation. After all, one or both parties may decide to stop the process and go another route and if agreement cannot be reached, traditional negotiation through their attorneys is still an option.
A lawyer will be able to answer questions about mediation and help a client weigh the pros and cons of the process in light of the family’s unique needs.