Frequently Asked Questions Regarding Divorce Mediation And Mediation In Colorado
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 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.
Free 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?
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.
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.
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).
Divorce mediation may also be ill-advised with parties having a history or present difficulties with medical or mental health issues or with substance abuse.
Disclosure that any of these issues may be at play in your relationship is vital to any skilled mediator’s evaluation of whether such a case is appropriate for divorce mediation and in structuring the process to remain safe, and constructive.
Finally, of course, there is the possibility that you cannot reach a mediated resolution of your divorce or family issues.
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.
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 90 days after the petition is filed jointly, or after service on the nonfiling 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 timelines for paperwork and even court “status hearing” obligations on divorcing parties who have filed. (Effective Jan. 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. 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 help divorced parents address changing circumstances?
Absolutely. Parent’s 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 a mediator 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?
Often, yes! Although our clients primarily hail from the central/northern Front Range of Colorado, we have mediated cases in Adams, Alamosa, Arapahoe, Boulder, Broomfield, Chaffee, Clear Creek, Costilla, Denver, Douglas, Eagle, Elbert, El Paso, Garfield, Jefferson, Larimer, Montrose, Park, Pitkin, Prowers, Otero, Summit, Teller 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, the People’s Republic of China, Denmark, Dubai (in the Middle East), Iraq, Japan, 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. Also, see our new approach to divorce mediation from remote locations — iDivorce.
9. Your website only infrequently mentions “child custody” or “visitation.” Why?
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:
How you will make decisions affecting your children
How you will share time with 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 “time-sharing” 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 to 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. We 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 allows for divorcing parties not only to discuss and attain their vision of a fair approach to divorce or co-parenting but also to memorialize that vision in a durable binding agreement, to be entered as a court order.
We CAN help you learn — in a neutral setting and in the context of mutual education — about legal rights, issues and options. This is often called “legal information.”
For strategy about legal rights, issues and options tailored to just one of you and your interests, you should consult with a Colorado family law attorney, to get “legal advice.”
This is one of the great advantages of choosing a Colorado attorney and trained mediator in a divorce or family law dispute: his or her ability to competently provide such invaluable information for the parties’ mutual consideration in their divorce planning! (Of course, consultation with an attorney or any other divorce professional is always advisable and especially, when questions linger and before final agreement on a divorce plan.)
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.
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!