Translation Tuesday: The world of mediation

Mediation – a process during which both parties negotiate and attempt to resolve any and all matters on which they disagree, using the assistance of a mediator.  The process does not involve Court oversight, allowing the parties to retain control over how they resolve any disputed issues.
Order to Mediate – an Order issued by the Court at the start of a case requiring the parties to participate in mediation.  Most jurisdiction’s require all parties to attend mediation before the case can be heard by a Judge.
Agreement to Mediate – as opposed to an Order to Mediate, this is when the parties voluntarily enter into an agreement to mediate certain disputed issues.  This is often found as a term in a Parenting Plan, where parties agree that they will attempt to resolve any disputed issues in the future regarding the implementation or modification of the Parenting Plan before seeking the Court’s assistance.
Mediator – a neutral third party whose purpose is to help the parties reach an agreement on any disputed issues.  A mediator cannot issue Orders or make the parties agree to anything.
Private Mediator – a mediator who is not employed by the Courts, but offers mediation services individually.
Office of Dispute Resolution – an office within the Colorado Judicial branch which provides mediation services to parties throughout the state.
Sliding Scale – a form of rate charging in which each party’s hourly rate is determined by their individual gross monthly income.  Usually offered through the Office of Dispute Resolution, though it is also offered by some private mediators as well.  This form of rate charging allows low income parties to participate in mediation when they otherwise might not be able to afford the process.
Scope of Mediation – the disputed topics or issues that the parties agree to cover in mediation.  Sometimes the topics or issues will be very limited, for example child support only, while other times, the parties may choose to not limit the scope of mediation, and therefore any topic or issue can be raised.
Disclosure – each party may be required to submit to the mediator documents which are relevant to the topics or issues being covered in mediation, for example a completed Sworn Financial Statement if financial issues such as maintenance or child support are being mediated.
Confidential Memorandum/Position Statement – this is a document that is prepared by each individual party and submitted to the mediator prior to mediation which sets forth the position of that party.   This document might contain the motivation of the party, the ideal result, cut-off point, and what a party might be willing to accept on any given issue.  This document is not provided to the other party and is seen only by the mediator.  It is intended to better help the mediator understand the positions and motivations of each party.  Some mediators will require this documents, others will allow the parties to choose to submit the document.
Right to Representation – each party participating in mediation has a right to be represented by counsel during mediation or to consult with counsel.  There may be some issues which parties feel comfortable mediating without the presence of their respective counsel, while for other issues each party may feel the need to have counsel with them.
Ex Parte Communication – any communication, either in person, electronic or written, that occurs between one party and the mediator outside of the mediation process.  Generally, ex parte communication is prohibited.
Combined Session – both parties are in a single room with the mediator throughout the duration of the mediation process.
Separate Session – each party is in a separate room during the mediation process and the mediator shuttles between the rooms.  The mediator may not spend equal time with each party, depending on the needs of the parties and the details of the case.  This is most often used in cases where there is an imbalance of power between the parties due to things such as domestic violence. 
Memorandum of Understanding – If the parties have reached a verbal agreement on any issue, the mediator can prepare a document which recites the verbal agreement and is signed by the parties and their counsel, if present.  If multiple agreements are reached, they will all be included on one Memorandum of Understanding, or MOU.  The MOU can then be filed with the Court and be made an Order of the Court.
Confidentiality – all communications made within the mediation process are confidential and should not be shared with any third party.  The one caveat to this point is that a mediator is required to notify law enforcement officials if either party declares that he/she has committed a crime or is going to commit a crime.   Communication made within the mediation process cannot be used as evidence in the case, and the mediator cannot be called as a witness or otherwise be asked to testify about specific information or offers made during the mediation session other than to testify that the parties did participate in mediation.  During the mediation process, if there is specific information that a party wants to communicate to the mediator only, such as the reason for an offer, the party should specifically inform the mediator that the information should not be shared with the other party.




One thought on “Translation Tuesday: The world of mediation

  1. Pingback: Mediating Your Life | Family Law Warrior

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