Frequently Asked Questions Regarding Divorce Mediation
and Mediation in Colorado
We're frequently asked:
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Why does
divorce mediation work?
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What are
some of the other benefits of divorce mediation?
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How do we
determine more complex issues?
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What are
the risks of divorce or parenting mediation?
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Do we
need to file for divorce before coming to mediation?
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Can
mediation assist divorced parents address changing
circumstances?
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Do we
always meet together? Can we meet separately, either
before the mediation, or in separate rooms during the
course of the mediation?
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Is
mediation workable when one of the parties or parents
resides outside the Denver metropolitan area, or even
outside Colorado or the United States?
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Your
website only infrequently mentions “child custody” or “visitation”.
Why their omission here?
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Is
mediation required by Colorado courts? Would we have to
mediate before a court hearing anyway?
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What is
co-mediation?
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Does mediation address issues of fairness in divorce?
1. Why does divorce mediation work?
Mediation is simply an amazingly powerful
process.
Accomplished divorce mediators are able to focus
on the real concerns of spouses and parents (their
“interests”) and not merely their view of what is required
to protect themselves and/or their children (their
“positions”). Divorce mediation works because the parties can
directly hear the other party’s
concerns and, with the assistance of the neutral mediator,
accommodate those concerns without unnecessarily compromising
their own interests.
Freed from the role of acting as an
advocate for a single party (the ethical obligation of an
attorney), a mediator can envision options that neither party
(nor their counsel) imagined!
2. What are some of the other
benefits of divorce mediation?
Minimizing
Distortion
 If you have ever played the game of passing a message
around a circle of friends, you know that communicating
through third parties often results in distortion of the
message. Many couples are astonished to learn in mediation
that their spouse or co-parent’s viewpoint is not at all as
it was represented to them and understood by others — even
by their own divorce lawyer’s office. In divorce and family
mediation with both parties present, intent and meaning can be
clarified immediately before misunderstandings compromise a
couple’s efforts to resolve issues.
Minimizing
Inefficiency and Cost
As noted earlier, obviously, a great deal of time and
money may be lost in communicating through third parties as
well. (Imagine the following: a message from you to your
divorce attorney’s secretary is forwarded to his or her paralegal
and then to your attorney. The attorney speaks with your
spouse’s attorney’s staff, then to your spouse’s attorney,
then to your spouse. A reply is then relayed in the same loop
only in reverse!) This can expend a lot of time and effort and
unnecessarily escalate costs. Mediation can accelerate
discussions and resolutions.
3. How do we determine more
complex issues?
During the process of mediation,
additional information may be gathered from many sources. You
may even agree to hire a neutral consultant to assist in your
work in mediation with divorce issues requiring special expertise,
such as the value of a home or property, a business or a
retirement plan, or issues involving your children’s special
needs. (You can agree in advance that this person’s opinion
will be used only in mediation, with the further benefit of
confidentiality and usually reduced costs.)
Of course, many clients are able to
discuss and agree on such matters in mediation, without any
outside assistance.
4. What are the risks of
divorce or parenting mediation?
As with all forms of dispute resolution,
divorce mediation involves some risk.
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To make good agreements, parties need
adequate and accurate information, of course. As a less
formal process than adversarial divorce, mediation may not
be suited for you when you have substantial concerns about
your spouse or co-parent’s integrity or candor in
financial disclosures.
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Divorce mediation may be disfavored or
present special challenges with parties having vast
differences in their power (financial sophistication,
bargaining savvy, and most significantly, where there is a
history of intimate partner violence or abuse).
Colorado law makes absolutely
confidential your discussions in mediation. (See our articles
on
confidentiality in Colorado divorce mediation,
Colorado mediators' ethics codes and
Colorado
mediation model standards.) Accordingly, if
you are in the minority of couples who — because of the
special issues listed above, or for other reasons — cannot
resolve their divorce or parenting issues in mediation, your
case is not prejudiced and your options are not compromised
when you turn to the litigated or court model of divorce.
In such a case your “risk” in trying
mediation is limited to the costs and time of an initial
session (one hundred twenty five dollars hourly each — if you are sharing our
fees, and usually two hours of your time).
Choosing an experienced family mediator is the
best way to minimize these risks. And, of course, adversarial
divorce has many of these same risks, as well as other risks!
5. Do we need to file for
divorce before
coming to mediation?
No. You do not need to file your divorce
or parentage case with the Colorado Courts before coming to mediation
(although you may choose to do so).
A single court form known as the “Petition”
(along with a simple “Case Information Sheet”, both available in the Tools & Resources section of this
website) is required to begin your Colorado divorce. A
similar form, “Petition
in Paternity” (also available on
this website), is required to begin a Colorado parentage case,
establishing parenting rights and responsibilities for never
married parents. Colorado law requires that parties to a
divorce wait ninety days after the Petition is filed jointly,
or after service on the non-filing party is made, before they
are eligible to obtain a Decree dissolving their marriage.
Recent local Colorado court procedures (“Case
Management Orders”) often impose certain time lines for
paperwork and even court “status hearing” obligations on
divorcing parties who have filed. (Effective January 1, 2005,
Colorado's divorce law rules require both parties’
attendance at a “status
conference” within 40 days of the filing of the divorce
Petition or after-divorce Motion. See our
article on these important changes to the Colorado divorce
process.) You may wish to discuss with
each other and with the mediator’s
assistance in a first session, how you wish to proceed with
the formal Colorado court process, including the timing of filing and
related issues. Many couples will file their Colorado divorce after a
session or two in mediation, to more easily manage their
court obligations.
If you feel insecure about your spouse or
co-parent’s
intentions, filing jointly (or with service) does impose
certain restrictions (collectively called an “automatic
temporary injunction”) and seeks to maintain the status
quo of Colorado divorcing parties. In such a case, it is highly
recommended that you discuss these protections (and whether
they are desirable in your case) with an attorney. If that is
the case, you may wish to file without further delay.
Mediation of your case, of course, is still possible.
6. Can mediation assist
divorced parents address changing circumstances?
Absolutely. Parents and children’s
needs change. We frequently assist couples (many of whom are
new to mediation and did not use mediation in their divorce)
to “tune-up” or reconsider parenting or support agreements
that once made a great deal of sense, but later require
changes to reflect new circumstances.
7. Do we always meet
together? Can we meet separately, either before the mediation,
or in separate rooms during the course of the mediation?
Ordinarily, there is great power in the
dialogue of both parties present in the same room. In fact,
this is one of the frustrations of a litigated or courtroom
approach to divorce: in adversarial divorce, parties remain
relatively isolated from each other and are unable to make
known directly their views and to hear their spouse’s or co-parent’s
views.
However, most mediators find great
opportunities in occasionally breaking during a joint meeting
to discuss with both parties individually, the emerging issues
and their separate concerns. This is an ordinary and routine
(and often, quite powerful) part of the mediation process and
does not signify the parties are failing in their efforts. You
will have the opportunity to speak individually with Larry or
Chris at any time for this reason.
Of course, where there are
safety and security concerns (or where the parties are
restrained from direct contact by Court Orders), and most
often, when parties have counsel attending with them,
mediation can proceed by “shuttle” between rooms. We have
a comfortable conference room just for this purpose.
8. Is mediation workable when
one of the parties or parents resides outside the Denver
metropolitan area, or even outside Colorado or the United
States?
Oftentimes, yes! Although our clients
primarily hail from the central/northern Front Range of
Colorado, we have mediated cases in Adams, Arapahoe, Boulder,
Broomfield, Chaffee, Clear Creek, Denver, Douglas, Elbert, El Paso,
Jefferson, Larimer, Montrose, Teller, Summit and Weld
counties, and with parties residing in many other states of
the United States (including Alaska and Hawaii), and as far
away as the United Kingdom, Afghanistan, Belgium, Denmark, Dubai (in the Middle
East), Nigeria, Peru, Russia, South Africa, Sweden and
Uzbekistan!
We strongly encourage clients to find a
way to have at least a single face-to-face mediation session
with each other at our office. This is extremely helpful in
establishing a trust relationship between the clients and with
the mediator, and in committing to the essential process rules
of our work. This face-to-face meeting may entail a special
expense, but the alternative
of litigation from overseas or other distances is often less
attractive and more expensive. (We’ve had a father fly to
Colorado from London on several occasions for mediation with
us!)
When parties make such arrangements (to
travel here for mediation, from a distance), we often work for
longer blocks of time, in an effort to resolve all issues in a
single or only several sessions. It is very common to have one
face-to-face meeting and conclude all other mediations by
telephone conference.
Although less preferred, on occasion and
in appropriate circumstances, we have mediated less complex
cases or limited issues by video-conferencing or telephone conference alone.
9. Your website only
infrequently
mentions “child custody” or “visitation”. Why their omission
here?
As with some other state’s modern laws,
Colorado divorce law no longer uses these terms.
The reality is that there are two broad
kinds of responsibilities you and your spouse or co-parent
must manage with respect to your children:
Thoughtful divorce professionals have
understood this for many years and further viewed the
“old-school” language and labels of “child custody” and
“visitation” as destructive and easily subject to
manipulation. The Colorado legislature recognized this years
ago, in amending its divorce and parenting laws to delete all
reference to these terms.
Colorado divorce law now uses the phrases
“parental responsibilities” and “timesharing” to
reference these concepts. In mediation, of course, we help you
arrive at a parenting plan that details how you will make
particular kinds of decisions affecting, and how you will
share time with, your children.
10. Is mediation required by
Colorado courts? Would we have to mediate before a court
hearing anyway?
Many, although not all, Colorado counties
do require mediation before any contested court hearing.
Of course, there are great advantages to
mediating early in the process, before parties’ positions
harden and workable options are foreclosed. Divorcing parties
and couples with parenting issues generally are more motivated
when they self-refer themselves to mediation as well.
11. What is co-mediation?
Co-mediation involves the choice of the
parties to also use a second mediator, generally of
complementary gender and professional background. With
co‑mediation, a skilled law and mental health background
and male/female balance is provided the parties.
Upon request, we most often work with
Elaine H. O’Reilly, M.S., L.P.C. Ms. O’Reilly is a
respected psychotherapist with great expertise in children and
divorce-related family issues, as well as an accomplished
Colorado divorce and family mediator. Elaine and Larry have co-mediated
high conflict cases and conducted dispute resolution training
together.
12. Does mediation address concerns of
fairness in divorce?
Managed with experience and skill, the
mediation process not only allows for divorcing parties to
discuss and attain their vision of a fair approach to
divorce or co-parenting, but to memorialize that vision in a
durable binding agreement, to be entered as a Court Order.
For a fuller explanation of this
important topic, see our Family Mediation Blog post:
Divorce, Mediation and Fairness: A Potential
Client's Inquiry.
For answers to additional common questions
regarding issues of Colorado divorce law, please see our “Spotlight”
feature, where we discuss in detail other Colorado legal, procedural (including
divorce law and family mediation) or parenting topics. Presently, we
discuss
Also see our
The Latest! for news and information
regarding recent changes to
Colorado child support,
temporary
spousal maintenance,
filing fees,
tax issues and
other Colorado divorce law and family mediation topics
of interest.
Next, consider some commonly held erroneous beliefs about divorce, divorce mediation and Colorado law.
We call them “Divorce & Mediation Myths,” and we'll do our best to “debunk” them!
You may also wish to specially
consider our separate article on
Choosing A Divorce Mediator.
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