Mediation in Colorado is a mandatory step in just about all domestic proceedings. If you haven’t been through it before mediation can be a bit of a mysterious and intimidating process. In this article I hope to explain what mediation is and how to prepare for it so that you know what to expect and make the experience as productive as possible.
The Basics of Mediation in Colorado
Mediation is an opportunity for the parties to meet with an impartial third party and work toward an agreement. The mediator will be familiar with the pertinent laws and may push back against some ideas raised, but it is important to understand that the mediator has no decision making authority whatsoever. The mediator’s only role in the process is to try and help the parties reach an agreement amongst themselves and unless a voluntary agreement is reached, the mediator will not and cannot decide on any of the issues presented.
The filing party (meaning whoever raised the issue before the court) is typically responsible for arranging and scheduling mediation. This can be done through either the Office of Dispute Resolution (https://www.courts.state.co.us/Administration/Unit.cfm?Unit=odr) or through a number of private mediators. The mediation session itself can either take place with all the parties in the same room or with the parties separated into different rooms. If all the parties are able to stay on task then everyone being in the same room can save a great deal of time. On the other hand, if face-to-face contact would distract from a productive mediation session then it would be best to have the parties in separate rooms. Ever since the COVID-19 pandemic most mediators are conducting all mediation sessions remotely via Zoom or another similar platform.
How to Prepare for Mediation
Even though the mediator won’t be making any decisions about the case, it always helps if the mediator understands the facts and laws that support your positions. Be prepared to summarize the facts and your positions/wishes on any disputed issues. Having statutes or cases that support your positions may help as they can provide the mediator with ways to push back against any counter arguments presented by the other side. If child support or maintenance is at issue be sure to know the statutory guideline amount or range of guideline amounts given the facts so that you can properly analyze and consider any proposed settlement offers.
In addition to gathering pertinent case law and statutes, spend some time prior to mediation considering where you may be willing to compromise and where you are not willing to compromise. Having ideas of your priorities and what potential agreements would and would not work for you prior to walking into mediation can save a good deal of time and unnecessary stress.
Frequently Asked Questions on Mediation in Colorado
Do I need an attorney?
Attorneys have very particular knowledge and experience that allow them to understand how Courts handle certain situations and how to frame arguments around existing statutes and case law. Not only can an attorney help you frame and present your positions at mediation, they can also help you develop potential agreements and analyze proposals presented by the other side. Overall, attorneys do provide a good deal of value during a mediation session, especially because mediators cannot provide either part with any kind of legal advice. However, if the cost of having your attorney attend mediation is a big concern, you should discuss your concerns with your attorney as there are ways to reduce the cost and your attorney’s presence is not required.
What should I and shouldn’t I talk about in mediation?
People often wonder what they should and should not be saying to mediators. There are two main points to remember when considering what points to focus on.
First, with very few exceptions everything you say to your mediator is confidential and mediators cannot be called into Court as a witness for either party to testify about anything discussed during mediation.
Second, while it can be important to provide some context to a mediator, keep in mind that time is money in mediation. You will want to briefly fill the mediator in with the facts of the case, but be careful to budget your time. The more time you spend focusing on anything other than the open issues, the less time you’ll have to try and work toward an arrangement that can work for everyone. So, in brief, mostly focus on communicating your positions and the legal basis/reasoning behind your positions. Time can go quickly in mediation and you want to reserve most of it for working on potential agreements. It can also be very helpful to provide your mediator with a brief outline of the issues and your positions prior to mediation so that when your mediation sessions begin you can jump right into trying to resolve the open issues.
What does mediation cost?
If you’re working with a mediator from the Office of Dispute Resolution you are typically required to pay for two hours upfront at a rate of $75 per party per hour. If the mediation session goes longer than two hours each party is charged an additional $75 per hour.
There are also private mediators that are not associated with the Office of Dispute Resolution. Private mediators have a broad range of knowledge and experience and can be very helpful in particular cases, but they are often more expensive than mediators at the Office of Dispute Resolution. The rates and policies of private mediators vary, so be sure to clarify those when searching for a mediator.
What happens if we’re not getting anywhere with mediation?
The Court requires that both parties mediate in good faith, meaning that you need to approach the process with an open mind and consider potential settlements. Having said that, some cases simply can’t be resolved at mediation.
If you reach a point where you’re no longer making progress you can simply tell the mediator that you’re ready to end the mediation session. The mediator will then fill out a document to be filed with the Court stating that the mediation requirement was met and informing the Court if any issues were resolved.
What’s next?
Any agreement or partial agreement that the parties are able to reach can be submitted to the Court for approval as the new orders. Any issues that are not resolved will be presented to the Court for resolution. The parties, and their attorneys, can and should continue to discuss the issues and potential settlements, but once mediation is completed it’s time for everyone to start preparing for a contested hearing.
A brief overview of the full procedure for a simple family law case in Colorado can be found in my two part article found here: https://www.dillielaw.com/blog/colorado-family-law-procedure-part-1/ and here: https://www.dillielaw.com/blog/colorado-family-law-procedure-part-2/. If you have any specific questions about mediation or anything else, feel free to reach out to me directly by email at DillieLawOffice@gmail.com or by telephone at (720) 507-3105.