With the court systems being overloaded as they have become in recent years, most if not all states have some requirement that parties to a dispute attempt to mediate their differences before they are allowed to present their case to the court. Colorado is one of the states that has passed an Alternative Dispute Resolution statute and requires mediation be attempted in most cases.
Why is Mediation Required in Most Colorado Divorce Cases?
There are a few reasons this is required. First, if the parties are able to settle their disputes or even some issues and not others, it either eliminates the need for a contested hearing, or narrows the issues before the court. Having the Judge in your divorce case make decisions for you is a risky proposition in many ways. The Judge cannot possibly know every detail of the circumstances he or she is being asked to rule upon. The court will schedule the hearing with a time limit. The time allowed will be split between the two sides with some time left for the Judge to issue the ruling. In addition, the Judge will receive the information in a very controlled setting. Rules of Evidence and court procedure must be followed. These realities mean that a stranger is going to make very important decisions about your life based on very limited knowledge of you or the circumstances.
Your attorney will make a presentation to the Judge that conveys the most important facts of your case as they relate to the decisions before the judge, but the Judge can’t know everything. Mediation provides a means by which divorcing couples can avoid the cost of a contested hearing and also save. The requirement for mediation is also intended to and does save the court time and money.
Second, it is thought that parties are more likely to abide by the terms of an agreement they have worked out between them than a court ruling imposed upon them by a stranger. Statistics have shown this to be true time and time again. When the disputed issue is financial in nature, the parties may have many reasons they have a particular position. Especially if it was a lengthy marriage, there may be years of history that a Judge can’t possibly hear that affect how the parties feel about what is a fair division of property and debts. When the disputed issue has to do with children, such as relating to child support or child custody, the argument over what is in the best interest of the child can get into virtually every aspect of a parent’s life.
When parties negotiate the provisions of their agreement, they have the feeling that all the circumstances have been taken into consideration. When a judge issues a ruling that a party doesn’t like, one reason they often give is that the judge did not “get it.” They feel he either didn’t get the information that would have persuaded him of their position, or that he misunderstood the information because he didn’t hear the whole story. These feelings that the judge made a bad or uninformed decision seem to allow people to easier rationalize deviating from the agreement in the future.
Finally, especially when there are children involved, mediation can set the tone of future negotiations. Rulings on financial issues are generally not modifiable once the time for appeal has passed. As children grow older, however their needs change and as a result orders regarding their care must also sometimes change. It would be great if in every divorce involving children, the parents worked together and as children grew up the parents adjusted together without needing court intervention. This happens in some families. In others it is necessary to invoke the court’s authority to either force a negotiated settlement or ultimately put the matter before the court. If the original parenting plan is something the parties agreed to, it is more likely they will agree when changes are required as the children get older.
Mediator’s Role in Colorado Divorce
Unlike a judge or arbitrator, a mediator has no power or authority to make decisions for the parties or to rule on anything. Typically the mediator will meet with each party separately and get from each a list of what the disputed issues are and what each side thinks is the best solution. The mediator will then go back and forth between the parties with offers and counter offers and see it agreement can be reached.
The mediator’s role is to find out what each party thinks are fair solutions and to sometimes suggest possible solutions that the parties may not think of on their own. These suggestions are just that and the parties have no obligation to even consider them much less include them in any agreement they may reach. If parties are represented by attorneys it is usually advisable that the attorney attend the mediation. There is no requirement that attorneys attend, but parties are much more likely to enter into agreements if they have legal counsel there to advise them.
Contact Family Law Attorneys in Colorado Springs
As mentioned before, you will be required to attend mediation before a contested hearing of your case. All the family law attorneys at the Gasper Law Group are familiar with mediation. Schedule a consultation with one of our experienced family law attorneys to discuss your options.