Myths of Divorce Mediation and Mediation in
Also consider the following common, but
erroneous beliefs (“myths”) about divorce mediation and the use of mediators in the Colorado divorce or family law process:
mediator will likely only postpone our conflicts until a
“I can get a better result, if I go to court and tell the details of my story there.” Mediation results in less optimal divorce settlements, than litigation.
can use a divorce mediator, or divorce lawyers, but not both.
to a mediation still have to hire a lawyer to do all the
to a mediation are required to attend court and their
lawyers would be required to be present at that time.
1. Using a mediator will
likely only postpone our conflicts until a later time.
False! Studies universally
demonstrate that couples who face and resolve their divorce
issues through mediation have a substantially greater
likelihood of voluntarily keeping their agreements. They are
more satisfied and experience a reduced likelihood of
significant conflict in the future, with obvious benefits to
their children as well. Mediated agreements
bargained for by
a divorcing couple or other separated parents are less
likely to result in future impasses leading to litigation.
(See our article on how recent research findings confirm the
persistent benefits of even a modest commitment to divorce
mediation rather than litigation, in resolving divorce
or child custody disputes. If you have children, we urge
you to consider this research
by following the above link!)
2. I can get a better result, if I go to court and tell the details of my story there. Mediation results in less optimal divorce settlements, than litigation.
False! Of course, for many high
conflict couples, its natural to imagine a “shock and awe” style
of court victory in a divorce or parenting trial — one that is hugely
satisfying. Even for less conflicted parties, “being heard”
and complete and satisfactory Orders from the judge after a
divorce trial are often assumed.
Our experience of the ordinary trial experience
for divorcing or separating parties, however, is one of their disappointment at best, and certainly not
one of elation. (In every instance of a delighted
divorce court victor, of course, there is the other spouse who feels hugely defeated or even humiliated. The difficulty
in such a polarized case is in predicting
“which end of the stick” you will find yourself.)
Most experienced divorce lawyers and other divorce court observers know that it is
asking too much of a judge not acquainted with your family's unique circumstances to discern
all truth from fiction and to dispense perfect justice after a hearing constrained by
limits of time as well as court formalities and rules. As fellow
divorce attorney-mediator Diane Neumann observes:
The reality of a divorce court trial is that most litigants walk out of the courtroom feeling as if they have just been run over by a truck. Even the winner often finds his or her enthusiasm dampened by the warning they hear from their
divorce lawyer: to prepare for the next legal round, when their ex-spouse appeals the judge's decision.
And, even when courtroom results are found reasonable by both
parties, legal fees and emotional costs exact their toll.
To be sure, there are cases and issues where negotiation or
compromise may be short‑sighted. No divorce process
(litigation, mediation, arbitration) is appropriate for all
divorcing parties or cases. Generally, however, divorce
mediation is the sensible, affordable option that results in
both parties having greater control, a more satisfying divorce
experience and often, an optimal result. In our view,
nearly always bests the “War and the Roses”, winner-take-all,
lawyer fought, custody battle approach to divorce!
3. A couple can use a
divorce mediator, or divorce lawyers, but not both.
False! Many couples, of course,
wish to avoid lawyers in their divorce, and mediation can
respect this choice. But other couples choose to retain
divorce counsel, or to separately meet with an advisory
divorce or family lawyer to
review their unique legal rights and options and to consider
the implications of any mediated agreements from the
lawyer’s perspective as an advocate for that client.
has great advantages. Informed parties simply make better
agreements. And, good agreements endure the test of time and
minimize the likelihood of further divorce or
parenting-related disputes, and related stress on the
4. Parties to a mediation
still have to hire a lawyer to do all the paperwork.
False! Certainly, there is often
some paperwork that is simply best drafted by a lawyer (this
includes highly specialized Orders that transfer certain
retirement benefits from one spouse to the other, for
example), but most parties are able to complete the ordinary
forms required in the divorce process.
Although divorce mediators generally believe it
inappropriate that they complete forms and sign them on behalf
of the parties to a mediation (as this is viewed as practicing
law), mediators can provide resources and assistance in your
completing the few required divorce forms.
Most importantly, as detailed previously,
family mediators do draft for the parties’ review and signature,
the final Agreement containing all of their understandings for
the Court to enter as its continuing final orders in the
divorce. (As noted earlier, mediators call this Agreement the
Understanding.”) [To view a sample first page
of this document,
disable any “pop-up” controls on your computer.]
5. Parties to a mediation are
required to attend court and their lawyers would be required
to be present at that time.
False! If a divorcing couple has no
children, their Memorandum (referred to above) and the
required forms can be mailed in to the Court without the
assistance of lawyers and no Court appearance is necessary. If
a couple has children, this is still the case if they have
lawyers and the lawyers review and sign on behalf of each of
(Recent changes to Colorado's divorce laws may require an
informal “status conference” in most cases. See our article
new Colorado divorce laws and process for more details
about these changes.)
If a couple has children, but have chosen to
proceed without the assistance of lawyers, at least one of the
couple with children is required to appear in Court for a
brief hearing (called a “non-contested” hearing). At that
brief hearing, the family law judge or magistrate considers all of their
paperwork and agreements. Colorado law requires this hearing (when
the parties have children but have not had the formal guidance
of lawyers) for the Court to scrutinize the appropriateness of
the parties’ parenting plan and/or child support
Accomplished family mediators work hard to create
documents that demonstrate to the judge or magistrate (who
acts as the “gatekeeper” of the process) that a couple’s
efforts and agreements are thoughtful and consistent with
their children’s best interests, and effect settlements that
appear equitable and worthy of the Court’s approval. Our
clients consistently inform us that reviewing judges are
highly complimentary of the form of divorce and parenting agreements that Divorce
Resolutions® provides its clients.
If you haven't already, be sure also to review some of the
most commonly asked questions (and our answers) regarding Colorado divorce, divorce mediation and Colorado
family law at our “Divorce
& Mediation Frequently Asked Questions.”
You may also wish to specially consider
our separate article on
Choosing A Divorce Mediator.