How to Get the Most Out of Mediation
Mediation is a mandatory step in all contested (unresolved) divorce and custody cases in Colorado. Aside from extreme circumstances involving domestic violence, you can expect to receive a mediation order at some point in your case. Mediation can be intimidating for some, but ultimately it is the best tool you can have to attempt to settle your case before ending up in a hearing.
What is mediation? Mediation is the process by which parties, with the help of a mediator (attorneys are also usually present), try to reach agreements on the substance of their case. Mediation typically takes place in separate rooms, with the mediator going in between the rooms during the negotiations. Oftentimes, mediations will occur via web conference. You can elect to be in the same room with your attorney or attend from the comfort of your own home. While the mediator is with you, you will be discussing with your attorney and the mediator what the offer is from the other side and a potential counter-offer. At any time you can ask the mediator to step out so that you can speak to your attorney privately, though mediation is a confidential process so the mediator cannot share anything with the other side unless expressly allowed to do so.
While the mediator is with the other side discussing your proposal with them, you can discuss the implications of the current proposal with your attorney, as well as work on preparing the final settlement documents, which is often referred to as a “stipulation.”
Because the result of mediation and settlement conferences can be a signed, binding agreement, the key to successful resolution is being prepared to commit. You should come to the meeting with a good idea of what you would like to accomplish, what you can do, and acceptable parameters of resolution. Simply put, the idea is “Ideally I would like X, but I’m willing to agree to Y.”
If you can go into mediation knowing what your ideal scenario is, and then also fully understanding your bottom line, your mediation is much more likely to be successful. Your ideal settlement should be what your best day at a hearing would be. This is what is reasonable to ask for from the Judge, but would give you the majority of what you want. Your bottom line should be the line of when you would rather go to a hearing than settle the case. Oftentimes this is considered your “worst day in Court.”
Another way to set yourself up for success is to have all of the information you want prior to the mediation. There are many ways to obtain information in a divorce or custody case, whether it is through financial disclosures, discovery, or just plain asking the other side. The timing of those methods all vary, so you should consider the timing of when you can expect to receive information when you are scheduling your mediation. The worst mediations are ones in which a party spends the whole time asking for information or has not adequately reviewed the information they have received. Give yourself time to obtain and review all of the necessary information so that you can walk into mediation knowing what you need to in order to make a sound decision.
Your attorney will meet with you prior to mediation and outline your best and worst case scenarios. You can then discuss whether your desires are reasonable and in line with Colorado statutes, or what adjustments need to be made. During your mediation, your attorney is there on a consultation-basis. You are the one making the decisions and should be taking the lead in negotiations. Your attorney is there to support you and explain ramifications of potential settlement.
Mediation can be a great tool for settling your divorce or custody case. But if you do not go in prepared with the information you want to have and the parameters of settlement, it is unlikely your mediation will lead to a settlement. By outlining your parameters and having all of the information you feel that you need, you are more likely to walk away with a settlement. In most cases, mutual settlements are going to be more favorable than going to a hearing. This is because you both agreed to the terms rather than having the terms given to you by a Judge you just met. Taking control of your case is taking control of your life after your case is over.
To discuss mediation and how to set yourself up for success, give us a call or shoot us an email. We are here to help!