Most Colorado couples who have decided to end their marriage dread the stress and anger of the process itself. Several issues cause special dread: child custody, child support, spousal support (or alimony) and division of marital assets. For wealthy couples, the last issue can be especially problematic. No one wants to come away from a divorce feeling that they were cheated in the division of assets, and many parties simply dig in their heels and refuse to compromise out of fear that any proposal from the other party is inherently dishonest. Over the last twenty years, judges and lawyers in Colorado have developed a process intended to obviate much of the emotional anguish that accompanies a divorce. That process is called “mediation,” and, as the name implies, the goal of mediation is finding a middle ground that both parties can accept.
How mediation works
The secret to mediation is the use of a neutral third party to referee the process. Mediators in Colorado are, by definition, neutral. They cannot favor either party, and they must take pains during the mediation to avoid favoring the interests of one party over the other. Most mediators in Colorado are either retired judges or attorneys who have received specialized training in the mediation process.
A mediation begins with the selection of a mediator. The parties are usually left to choose their own mediator, but judges have been known to choose a mediator if the parties are at an impasse.
Once a mediator is chosen, the parties each submit a confidential mediation statement to the mediator. After reviewing these statements, the mediator will schedule an initial mediation session. The parties each sign an agreement to mediate, which includes a provision that makes the mediation proceedings confidential. The parties also agree that they will not call the mediator to testify at trial about anything that occurred in the mediation. Most parties will bring their attorneys to all mediation sessions unless the mediator requests otherwise.
In the initial session, the parties will present their respective views about the issues that require resolution and how such issues should be resolved. After these presentations, the parties and the mediator will prepare a schedule for further meetings. The mediator will pay careful attention to the positions of both parties and will suggest compromises to resolve many of the disputes.
If the parties reach an agreement on their various disputes, the mediator will draft an agreement for the parties to sign and for submission to the court.
Mediation of property division
For wealthy couples the division of assets can be very difficult, especially if the couple has been married for a significant number of years. Colorado is an “equitable distribution” state, which means that the marital property must be divided between the parties in a fair and equitable manner. A mediator does not possess anxiety about being cheated by the division of assets, and the mediator is therefore free to suggest alternative means of dividing the property without worrying about being cheated. The mediator’s main task is to ensure that the division of assets is fair to both parties. Mediators must often explain why the suggestion of one party is not fair for the other party or demonstrate that a perceived inequity in fact treats both parties equally.
Misconceptions about mediation
The principal misconception about mediation is that the mediator acts like a substitute judge. In fact, the mediator is legally prohibited from issuing any orders that affect the substantive rights of the parties. If one party disagrees with a proposal made by the mediator, that party is free to reject that suggestion. Most mediators will take such a rejection in stride and search for an alternative that will please both parties and end the dispute on that particular issue.
Benefits of mediation
By transferring the decision-making into the hands of the parties, mediation eliminates the parties’ feelings that they have been treated unfairly. In many cases, the mediator must ensure that both parties understand that the outcome of mediation depends entirely upon their choices and not upon any decision made by the mediator. A successful mediation can eliminate the enormous cost of a courtroom trial and gives both parties an optimum chance of ending their marriage with a minimum of anger and residual bitterness.
Anyone interested in using mediation as a tool to speed their divorce should consult an experienced divorce attorney for further advice on the process.