Myths Of Divorce Mediation And Mediation In Colorado
Consider the following common but erroneous beliefs (myths) about divorce mediation and the use of mediators in the Colorado divorce or family law process:
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 astonishing and 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, it’s 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, mediation 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.
This 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 involved family.
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 a draft for the parties’ review and signature, the final agreement containing all their understandings for the court to enter as its continuing final orders in the divorce. (As noted earlier, mediators call this agreement the “Memorandum of Understanding”.)
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 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 the parties. (Recent changes to Colorado’s divorce laws may require an informal “status conference” in most cases. See our article on new Colorado divorce laws and process for more details about these changes.)
If a couple has children, but has 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 “noncontested” hearing). At that brief hearing, the family law judge or magistrate considers all 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 arrangements.
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 affect 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 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.”