The mediation process is an excellent opportunity to use us, your team of Denver divorce attorneys, to mediate an out-of-court settlement.
Judges work long hours and preside over the break up of many families. While they do as well as they can from the bench, you know more than they do about your children, your finances, and the other issues in your family law matter. And as we listen to your story and your needs, we will strive to be your experts concerning your objectives. This puts you in the best position to work out a solution with your ex without going to Court.
What exactly is Mediation?
Mediation is a type of Alternative Dispute Resolution (“ADR”); a way to settle issues without litigating in a courtroom. The mediation process varies, but generally, mediation involves a neutral third-party, the mediator, who works with the parties in a case in an attempt to reach an agreement on their disputed issues.
Often times, the Mediator will start with one party in a separate room and shuttle between the parties. The mediator will listen to that party’s requests and positions, and then proceed to discuss those with the other party in a different room. The second party then conveys his or her positions, or counteroffer, to the mediator, who goes back to the first party. This process continues, with the mediator attempting to get the parties to reach compromises on the different disputed issues, with the goal of reaching a written agreement in the case.
Josh, My Spouse Wants to Mediate Without Attorneys…is that a good idea?
Mediation is a great way to attempt to resolve disputes with your spouse in your divorce case. However, you should keep in mind that the mediator is not your divorce attorney, or your spouse’s divorce attorney, and therefore she will make it clear to you both that she is not your advocate. Mediators must be neutral in the mediation process. Therefore, she will not make efforts to find and raise issues in your case that expressly benefit you. Unfortunately, I have experienced consultations with clients who already attended mediation and signed an agreement before seeking out an attorney, and in many cases, my ability to help the client at that point is limited. Had I been there from the beginning, I would not have advised the client to agree to the terms of the agreement as written. Even with great mediators, there’s a significant risk that items will be missed that you will later regret were not included in the agreement. So, while I think mediation is a beneficial way to resolve disputes between parties, I think it is highly advisable to have counsel advocate for you through that process.
You may be in a situation where your desire to “lawyer up” will be treated as you being hostile and litigious. You may be told that by your ex that he won’t even mediate with you if you seek counsel. Be wary of that representation. I’ve seen cases where someone in his shoes was actually getting information from an attorney-friend, and of course, he didn’t want his ex to have the same advantage. For the party who is faced with this obstacle, one possible way to work through this dilemma is to agree to mediate without counsel. However, once you have worked out the terms of an agreement, DO NOT SIGN IT. Inform the mediator and your spouse that you would like to consult an attorney concerning the terms in the agreement. If the agreement is truly fair to you, then he should have no objection to allowing you the opportunity to have a divorce attorney review the agreement on your behalf.
Josh, What if I make an offer to try to settle the case, but we don’t…can that offer be used against me?
No, most of the information conveyed during mediation is confidential and cannot be introduced later in court against you. There is also a rule of evidence that promotes a party’s efforts to settle the case by making allowing you to make offers to settle the case that are not admissible as evidence against you if the case is ultimately not settled.
There are a few considerations and exceptions to confidentiality in the mediation context. If a party threatens to harm a child or the other party, and the mediator is concerned that the threat is valid, the mediator is obligated to report that threat to the authorities. Also, it will be helpful to have a divorce attorney with you to determine what you should, and should not, convey to the mediator or to the other party. Even if an offer you make can’t be presented to the Judge at a future hearing, there is strategy involved in conveying information to the other side that is important to protecting your case for trial if it does not settle during the mediation process.
Our team of family law attorneys are dedicated to resolving your disputes in the mediation process. No Judge or Magistrate knows your children like you know your children or your circumstances. So, we realize the importance of strategizing and preparing for mediation so that every effort is made to resolve your case favorably to you at mediation. A well drafted Separation Agreement that is reached after negotiation at mediation allows both parties to control their own destiny rather than leave their fate to a Judge is the best way to resolve a dispute in family law.
We place a strong emphasis on mediation because litigation can be damaging, especially when there are children involved. Working diligently with a mediator in a mediation session can yield beneficial results for you. If you are seeking a strong family law attorney who will work hard to settle your case in mediation, contact our office now to set up a FREE consultation to discuss your case.