Parties to domestic relations cases in Colorado will nearly always be required to mediate their claims before a court will hold a contested hearing on the issues as mediation is required in most non-emergency cases. Often, our clients and potential clients have questions surrounding the mediation process, what it entails, and why it should be viewed as an opportunity rather than just a ‘box to check’ in the course of the litigation.
The underlying reason that mediation is required in these cases is because contested court hearings are generally held as a matter of last resort. The reasoning behind this is simple: the court system has limited judicial resources, crowded court dockets, and the anticipated fees that could be saved by each side by resolving the disputes rather than preparing for contested hearings. In other words, contested hearings are reserved for those situations where the parties cannot resolve their issues without court intervention. Thus, mediation is a tool used to facilitate resolution.
It is also important to note that what happens in mediation, and specifically the positions that a party takes with the hope of resolving a case, are strictly confidential and cannot weaponized against the party at a contested hearing. This allows a party to take a position at mediation that the party would not otherwise take a trial.
Here at Ross Law, we encourage our clients to be open to resolving the disputes they have with the other side, because at the end of the day, reaching a resolution allows our clients to have a say in the outcome of the case unlike a contested hearing which will be decided entirely by a judge who likely has never met either party, lacks an adequate understanding of the nuances of the disputed issues, and has no personal stake in the outcome of a case. Hence, we approach mediation differently than other firms by viewing it as an opportunity to grab the case by the reins and steer the outcome in a direction favorable to our client’s needs.
The nuts and bolts of setting mediation may vary county-by-county, but generally it involves the following:
• The court will set a deadline by which the parties are required to complete mediation.
• Thereafter, the parties’ attorneys will propose a few mediators to the other side. Hopefully, one or more of the mediator names that the parties propose will overlap, which simplifies the selection process.
• Once a mediator is agreed to, the attorneys will request the mediator’s availability and then confirm dates with their respective clients.
• The mediator will circulate a mediation agreement, which all parties and their attorneys will need to sign.
• A few days before the mediation, both sides will prepare and submit confidential mediation statements (confidential in the sense that the mediator will not share the statement with the opposing party) to give the mediator some basic background information.
• In this post-covid world, nearly all mediations are conducted electronically (typically Zoom). The parties will login to the Zoom call using the credentials provided by the mediator.
• The mediator will place the party and his/her attorney in a separate virtual breakout room.
• The mediator will likely then start the mediation in the virtual room assigned to the petitioner or the moving party, depending on the nature of the case.
• The mediator will listen to the parties’ arguments and demands.
• The mediator will then head into the opposing party’s room to get the other side of the story and the opposing party’s demands or counter offers.
• The mediator will go back and forth into the rooms until either 1) an agreement is reached in principle; 2) one of the parties decides mediation is not going to result in any resolution on any issue; or (3) the time of the mediation runs out (in which case the parties may be able to go later in the day subject to the mediator and counsel’s availability, schedule a second mediation, or continue the negotiations through counsel).
• If a resolution on any issue is reached, the mediator will prepare a Memorandum of Understanding (“MOU”) that details the specifics of the agreement. One of the parties will then file the MOU with the court along with a proposed order. The MOU becomes an order of the court once the court signs the order adopting it.
• If no resolution is reached, the mediator will circulate a mediation completion certificate, which will be filed by one of the parties.
• Both sides will then begin preparing for a contested hearing.
If you have any questions or concerns about mediation, please reach out to schedule a call with one of our experienced attorneys.
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