Mediating Your Life

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Last week we talked about Retaining Control through your domestic relations proceeding.  Today we are going to talk about one great way to do that…mediation.

Some couples struggle for years hoping to “fix” their marriage. Some couples have difficulty articulating one specific problem plaguing their marriage. No matter how you arrived at this station, either you or your spouse has finally filed for divorce. The emotional roller coaster is hopefully nearing its end. The divorce will be final after the Permanent Orders hearing. Most courtrooms in the front range of Denver now require parties to mediate prior to providing them with a Permanent Orders hearing date. What does that mean??

It means that the court is affording you one last opportunity to retain control over the outcome of your case before the judge starts dictating how things will unfold. And remember, we are talking about giving you one last chance to decide how YOUR children will be raised and how YOUR money will be divided and what will happen to YOUR home.

A mediator is a neutral, objective third party assisting you and your soon-to-be-ex to resolve the contested issues in your case. A mediator can not order you to do anything. Instead, they help you both compromise to reach a common goal. Mediators help you to uncover those common goals and assist you in making decisions that benefit everyone involved.

Mediation is often a painful process but no more painful than testifying on a witness stand about your spouse and parading friends, family and co-workers through the courtroom as witnesses testifying on your behalf. Mediation is a forum that encourages the opportunity to set your hurt feelings aside and to jointly make decisions that are best for your family. Mediation allows you to retain control so you can work together to make good, logical decisions.

So, I suggest you make a conscious decision to participate in mediation in good faith with the genuine hopes of resolving the contested issues in your case. I would personally rather have some control over the outcome then roll the dice and see what a judge might order me to do!

For more details on mediation, check out Translation Tuesday: The world of mediation.

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The Devil is in the Details

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After months, perhaps even years, your divorce is finally over. It has taken a toll on you emotionally and financially. You are prepared to look forward to a new beginning or a fresh start. However, now you have the daunting task of implementing and living by the terms of your separation agreement. Now you begin to realize that your need for closure distracted you from putting thoughtful consideration into the actual terms of your agreement. This routinely happens when you are a divorcing couple with children. Your end product focused on key elements of who got what (property) and who paid what to whom (support) but you glossed over key details that are now resulting in disputes between you and your Ex. For example, the agreement states that your Ex has parenting time with the children for the weekend and you have parenting time every Monday. President’s Day is fast approaching and the kids do not have school on Monday. Is it your Ex’s responsibility to care for the children until 3:00 when school would have been dismissed? Or is it your turn to take a day off from work to stay home with the kids?   It is important to remember to include a road map for resolving future disputes in your original agreement. You may want to include vehicles to resolve differences, disputes or ambiguities. A helpful tool is to include language in your agreement that requires you to mediate a dispute such as the one I referenced above. Perhaps mediation will allow you an opportunity to resolve disputes amicably, quickly and with less assault to your pocket book since children’s needs are ever-changing. With a plan to resolve disputes, we can avoid reliving the stress of the original divorce all over again.

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.