Family Law Mediation: Is Mediation Appropriate for My Case?
Couples and individuals beginning the divorce process or dealing with issues that arise after divorce may have heard about mediation from friends or family members, but they often have many questions about whether it is the right choice for them and how it works exactly. This article considers some of the most frequent questions about mediation and clarifies some common misconceptions about it.
“Isn’t Mediation Only for Amicable Couples?”
No. Mediation does not require that you be amicable, friendly or even regularly communicating with your spouse. Mediation is an alternative to the adversarial process in which both parties to a divorce are represented by counsel who have entered appearances on their behalf in a court case and a judge may be in the position of deciding any contested issues. However, many couples who are not amicable, and may not be communicating at all, can still reach a full resolution of all of the financial and parenting issues in their divorce in mediation. Having mediated hundreds of divorces I have seen couples all along the spectrum. Some have a friendly, mutually-thoughtful relationship and may not have any real areas of disagreement but still want to have the support of a professional as they divide their property and come to agreements about co-parenting. Others may not have spoken at all over the course of a long separation or may struggle not to get emotionally triggered when their spouse says anything during the mediation. Mediation can nonetheless provide a safe, contained forum for couples to reach agreements with a supportive neutral present who can limit unproductive conversations and re-orient the discussion to the key issues without indulging in harmful and draining arguments. The mediator can listen to each spouse or partner’s perspective, and often help them feel validated in their feelings without compromising their objectivity. This in turn leads to more efficient meetings because couples are less likely to spend time seeking validation and acknowledgement from the other spouse who is unlikely to be receptive.
“If we both agree can’t we do what we want with our divorce agreements?”
Not entirely. Mediation does unquestionably allow divorcing couples the flexibility to create agreements that address their individual circumstances in a way that a judge imposing a ruling does not consider. However, mediated agreements (or when couples do their own agreements with no professional support) must still meet the requirements of Colorado law regarding equitable division of property, spousal support and the best interests of children. While the role of an attorney-mediator is to act as a neutral and not to provide legal counsel to either party, the mediator can use their understanding of the law to help clients finalize agreement terms that are likely to be accepted by the court as consistent with the law. A common way in which mediation allows couples to create more flexible agreements than what would be ordered by a court is when they agree to continue to co-own their home after divorce. Although not the preference of the court, if couples agree and work with a mediator to specifically address the various issues that need to be resolved and considered in co-owning property post-divorce then their agreement can still be approved.
“I’m afraid my spouse won’t be fully transparent about our finances.”
This is a concern for many people going through the divorce or legal separation process (or if they are unmarried but have children together). However, all parties - whether in mediation, collaborative divorce or litigation, are required to make a full and accurate disclosure of their financial circumstances through the exchange of mandatory financial information. These mandatory disclosures must be exchanged before agreements can be reached and the mediation process cannot proceed until the mediator has either facilitated and coordinated this exchange or at the least confirmed that the parties have completed their exchange. Generally the mandatory disclosures are broad enough that they provide each spouse with a clear picture of marital assets, debts and income. If one or both parties are still concerned about transparency the mediator can suggest that additional documentation be exchanged without having to go through the time-consuming and expensive process of full discovery in a litigated divorce.
“Can I still work with an attorney?”
Absolutely. As the mediator I am acting as a neutral and cannot provide legal advice to or represent either party. I can instead use my knowledge of the law to assist couples in reaching a full resolution of the financial and parenting issues in their divorce or separation, the terms of which are consistent with Colorado law. I will draw on my background as an attorney experienced in family law to provide feedback to clients about how a judge might consider a certain issue, including an outcome that might be likely were the court to impose its own ruling. This type of feedback is distinct from advising either party or answering questions of strategy but it does increase the likelihood that couples will reach a complete agreement that adheres to the requirements of the statute and can also be reasonably implemented. I encourage clients to consult with individual counsel to address any specific concerns they may have about their legal rights and obligations. I will recommend that you work with other attorneys who I believe are supportive of the mediation process and not likely to ‘torpedo’ the negotiation process.
“Can the mediator help with all of the paperwork that we have to file to get divorce?”
Yes. As a mediator I can assist in the preparation of all of the court forms required to be submitted to the court in a divorce or separation and can coordinate the exchange of mandatory financial disclosures. When clients reach a full agreement (whether at the time of divorce or for post-decree issues) I will also prepare a final agreement called a Memorandum of Understanding (MOU) that reflects the terms of your mediated agreement. This can then be filed with the court as part of your Separation Agreement, Parenting Plan or a stipulation in post-decree cases.
“Our finances are too complicated for mediation?”
For clients with more complex assets such as future equity interests, restricted stock units, shareholder or partnership interests, small businesses, multiple real estate holdings and trusts, there can understandably be concern that mediation can’t address these types of issues. However, I have worked closely with many divorce professionals for years and can collaborate with and provide recommendations for a Certified Divorce Financial Advisor (CDFA), business valuator, real estate appraiser, CDLP (Certified Divorce Lending Professional) and others as needed.
“I want to be done quickly and mediation seems like it will take too long”
Not uncommonly, by the time folks finally get to the point of being ready to part ways with a spouse/partner, they want to be done with the process yesterday. They may be ready to file and/or ready to find a new living arrangement. The idea of multiple mediation sessions can seem like it will extend the process and mean that a decree cannot be obtained for months. However, in reality, the parties themselves have a lot of control over how long the process of mediating a divorce will take, in contrast to litigation when hearing dates may not be scheduled for 6 months or a year after a petition is filed (and these dates often get moved back further). If you work diligently through the financial disclosure process at the outset and select an approximate ‘target’ date for filing your petition it is not an unreasonable expectation that you could be done with the process within 3-4 months.
