What to Expect During Mediation

When you file for a domestic relations case (divorce, legal separation or allocation of parental responsibilities) in Colorado, you will be required to attend mediation. There are only two main exemptions to this and that is if the parties settle and mediation is no longer needed or if a protection order is involved. Since COVID permitted most mediations to take place virtually, the latter is sometimes not even a strong enough reason for a delineation from this prerequisite.

So, the Court or an attorney lets you know that you and the other party will have to engage in mediation. What can you expect?

First Steps/Scheduling

The first thing that will happen after parties are ordered to attend mediation is that one or both parties (or their attorneys if they are represented) will research and reach out to mediators for their availability, experience, price and credentials. If the mediator sounds like a good fit, the mediator will provide the party or their attorney with their availability. This is the initial contact. Unlike a consultation you may have had with an attorney, this is much less formal and much less information is conveyed in the initial contact.

Contact with the parties/their attorneys prior to mediation

After mediation is scheduled, the mediator or their scheduler/assistant will send out a Mediation Agreement and a welcome, introduction and confirmation letter. The same Agreement and letter will be sent to both parties and their attorneys. The mediator is not an investigator or Court-Ordered expert, so they do not do follow-up phone calls or interviews with either party or their counsel. The bulk of the communication between the mediator and the parties or their attorneys is done at the mediation session. Most mediators, however, will permit the parties or their attorneys to send the mediator relevant documentation prior to the session such as relevant pleadings, financial documents, appraisals, reports from experts such as a CFI or PRE (more on that here) or position statements prepared by the party or their attorney.

Impartial/legal advice

Some mediators are also practicing attorneys. Sometimes mediators are also attorneys are sought out for that reason alone. The thought being that an attorney can be more experienced in litigation and have a better idea of what to expect during Court, in specific courtrooms or with certain Judges or Magistrates and they are well-versed in case law and statutes. This can certainly be an advantage, but something that is important to remember is that even the best and most experienced attorney acting as a mediator is unable to give legal advice to either or both parties during a mediation session. Any mediator who has Court experience (and almost every mediator whether they have their law degree or not has some Court experience) can give their lived experience with what they have seen or experienced if a certain issue goes to litigation. But it is a conflict of interest for any attorney to give legal advice when they are acting as a mediator.

Cost

This is a big one, isn't it? Like with attorneys, a mediator will have an hourly rate that will reflect their experience as a mediator. A mediator working through the Court as a ODR (Office of Dispute Resolution) mediator, a mediator who works through the City or County as a volunteer or vendor, or a mediator who is new to mediating often has an hourly rate of about $150-$175. A highly experienced family law mediator in the Denver metro area may have an hourly rate of $350-$500. You and the other party will have to choose what is most economical and beneficial to your case.

Generally speaking, absent a Court Order or agreement of the parties, the cost of mediation will be split equally between the parties. A mediator may require a deposit be paid in order to be placed on their schedule. They may also have administration fees for things like review of documents prior to mediation. These are also usually split between the parties absent an Order or agreement.

Confidential

Everything said in mediation is confidential. This means that one party can't go into Court and tell the Judge or Magistrate "Well this person was willing to waive maintenance in mediation, so they should not be awarded maintenance." The purpose of this confidentiality is to promote settlement outside of Court. If this requirement was not in place, it would not give the parties the freedom to be creative with settlement offers or to air their specific concerns or ability to negotiate.

The only exception to this is that mediators are mandatory reports. If either party talks about harm to themselves, others or children, the mediator will have to report it.

Virtual attendance

Back in the day, mediators would sit around a conference table with the parties and their attorneys. Some would break the parties apart, but some would not. Ever since COVID, nearly every mediation will be held virtually. The mediator may start with the parties in the same virtual "room" but often will break the parties out into their own "break-out rooms" so that each party has their own time and freedom to discuss concerns or settlement offers to the mediator without the other party present. If this is done in person, it is called a caucus. Because the mediator's goal is (or should be) settlement, parties can rest assured that this is not simply an opportunity to gossip or be unfair, but rather a way to effectively communicate delicate issues that can be emotionally charged.

Attorneys present

It is not a requirement for attorneys to be present at mediation. However, if you are represented it is usually a good idea to have your attorney there. Not only are they equipped with knowledge and personal insight into your case, but their sole purpose is to advise you on your best interests. They can help keep the logistics on track if things become too emotional. They can tell you if a proposal is a good deal for you or not and the pros and cons of it. There may be an inclination to not want to pay for the hourly rates of an attorney and a mediator simultaneously, and I am not downplaying that factor at all, but I would always recommend at least running any agreement you are thinking of signing by your attorney before signing anything.

No evidence or witnesses

Mediation is not arbitration (more on that here). Mediation is not a hearing. Mediators are not decision-makers in any capacity during a mediation process. Financial documents are used for accuracy only. There is no need to bring things like photos, recorded phone calls, videos, or anything that you might use as an exhibit in trial to mediation. CFI or PRE reports are used in mediation only because of the weight that they carry in litigation. They can give some background and reasoning for the recommendations, which is helpful, but their purpose is not to find out or determine which party is the "better parent." The goal of mediation is to try to settle or see if there is room for creative negotiations. Mediation may end in an agreement, but they may not. And on that note . . .

Agreements are at the discretion of the parties/their counsel

Mediation, even Court-Ordered mediation, is a voluntary process. If at any time either party wants to end the mediation process, they are welcome to do so. It is a requirement that the parties engage in good faith mediation, but it is not required to come to an agreement in mediation. It happens often in mediation that one or two issues are resolved, and one or two others are taken to litigation. For example, maybe the parties can agree on a parenting time schedule and reduce that to a signed agreement but go to Court on the issue of property division. This is not ideal, of course, but is better than going to Court on all issues if you can reduce it down to one or two.

Agreements are binding and may become a Court Order

If you do come to agreements in mediation, a document called a Memorandum of Understanding may be signed that lists out all the agreements that were reached. If the parties have attorneys, those professionals may already have drafts of a Parenting Plan or Separation Agreement that they work through during the session that addresses every single issue in a detailed document. Really -- these agreements can be up to and even over twenty pages each. The important thing to keep in mind when you decide to sign any agreement, whether it is a Memorandum of Understanding, Stipulation, Parenting Plan or Separation Agreement, that document, once filed with the Court and approved, is enforceable. Therefore, it is extremely important to read everything that you sign, to understand and agree with everything that you are signing and that you have anything you sign reviewed and approved by your attorney, if you have one.

You will not get everything that you want

Perhaps the most important, but the most brutal thing that you need to expect is that you will not leave mediation getting 100% of what you want. That is a plain and simple fact. If the other party was willing to concede to everything that you asked for or wanted, you wouldn't need mediation. The best way to prepare for mediation is to be ready to compromise what you want with what you need.