Mediation Myths

Myth: All mediators are the same.

Fact: Mediation is entirely unregulated in Colorado. Anyone, whether they have any legal background or not, can hold themselves out as a mediator. Many of the mediators in Colorado have no legal training, no experience or expertise in family law and therefore do not know the law, do not understand what the issues are, and cannot write enforceable agreements. A poorly drafted document leads to litigation and more conflict as the parties fight over what it means and tempers flare. Typically costs exceed preparation of the agreement with a more experienced mediator who ensures the agreement (known as a Memorandum of Understanding or “MOU”) is drafted correctly, includes missing terms, then if they hired an experienced attorney-mediator.

Moreover, parties may enter into agreements with insufficient legal knowledge. An experienced practitioner can give you knowledge of the law, and in many instances discuss how the Court would interpret it. A conversation regarding the law and how it operates is necessary for the parties to reach a reasonable agreement.

Inexperienced mediators are unable to identify or address critical issues. Parties do not always know every item requiring inclusion in the MOU. If the mediator has no idea either, it inevitably leads to problems. States require lawyers to be highly educated and pass a rigorous exam before allowing them to handle legal matters. The same is not true for mediators.

Myth: Mediation is not suitable for complex matters.

Fact: On the contrary, the more complex the matter, the more suitable mediation it may be. Trying complex cases can be difficult, time-consuming and challenging. Judges may or may not understand the law and the implications of their decisions. And they may rule in ways neither party expected or is not in the best interest of the children. While you have little control in the courtroom, reaching an agreement you can live with not only greatly reduces the conflict between the parties, but also is far more likely to be honored by both parties.

Liz is very comfortable with complex financial and child issues and is able to offer helpful suggestions and insights as someone who understands divorce finances, has substantial litigation skills and is a parent. Mediation is far more flexible than litigation, and the parties are not restrained by the law in the same manner that a judge is, leading to more flexible outcomes, which in turn are better suited to the help the parties and their children move on with their lives. It goes without saying that mediation is substantially more cost efficient than preparing and attending a hearing, with less potential downside for the parties. Complex issues take hours of preparation to litigate. An experienced mediator can understand the issues in a fraction of that time.

Currently, Jefferson County is down 6 judges and a few magistrates and cannot get the parties into court rapidly. Most cases can be mediated within a week or two, far faster than trying to get in front of a court. Other districts are experiencing a shortage of judicial officers as well.

Myth: I cannot come with Counsel, or must have counsel with me.

Fact:You do not need to bring an attorney, or even consult with one before attending mediation. It is your choice on whether to bring an attorney with you to mediation. Parties frequently attend mediation without consulting an attorney at all, particularly when this office handles the complete divorce action.

Myth: The mediator represents both of us.

Fact: Even though the mediator is an attorney, she does not represent either party. The mediator is a neutral facilitator who aids in identifying the root of the conflict, explaining relevant law, resolving the issues and drafting an agreement (called an “MOU” or “Memorandum of Understanding,”), which is then filed with the Court, becoming a Court Order.

Myth: I have to be in the same room.

Fact: You do not have to be in the same room. If there is a restraining order or one of the parties or counsel believes being in the same room would be unsafe or not productive, Our Family Mediator, LLC has separate, non-adjoining conference rooms. The Mediator has substantial experience in dealing with domestic violence and abusive relationships. The mediator may separate the parties as well to bring down the level of conflict and reach a settlement. You will always be asked at the beginning of the mediation if the parties would like to be in the same room. If you do not consent to be in the same room, you will be placed in separate rooms, no further questions asked. Also, if at any point during the mediation process either party or counsel request different rooms, parties will be separated. If conflict or discomfort ramp up, the chance of settlement decreases.

If parties are concerned about meeting the other party in the parking-lot or halls, the arrival and departure times will be staggered by the mediator to ensure this does not happen. Please notify this office ahead of time to request staggered arrival and departure times. Parties must be as comfortable as possible during the process. Snacks and drinks are always available, as well as comfortable surroundings. Be mindful that if you do not settle the matter, you will likely confront the other party in court.

Myth: Cases with Domestic Violence or Restraining Orders are not suitable for mediation.

Fact: A substantial proportion of cases coming to this office involve Restraining Orders or parties who have experienced Domestic Violence, or other kinds of abuse during the term of the party’s relationship. Most are successfully settled. Separate rooms are available and utilized in these situations if required or requested. A staggered arrival and departure time can also be arranged with prior notice to this office.

Myth: My spouse is intimidating, so I don’t think mediation will work.

Fact: If you are intimidated by your spouse or the process, please feel free to request separate rooms. You are also able to arrive and leave at different times as your spouse to keep from running into them in the halls or parking lot. Contact us ahead of time to arrange staggered times.

Myth: Mediation is not appropriate because my Spouse is lying or hiding assets.

Fact: A spouse may lie or hide assets whether they are in mediation or appear before a Court. Often documents are exchanged directly during mediation, or accounts are made available to show current balances. The on-the-spot method is typically disallowed in Court but works well in the mediation setting. Sometimes the parties agree to disclose missing assets by a specific date and then return to mediation.

Myth: I think I need an expert.

Fact: There are many ways to resolve issues, including the use of experts. Parties can agree on an expert in the mediation process, await the report, and then return to mediation. Frequently, more than one method to value property is available which does not require the use of an expert. This office is happy to provide those alternatives to the parties. Many times, the parties can agree on the value of a property or business, without the additional cost of experts. Also, Ms. Kreis has substantial experience in dealing with children’s issues, such as decision-making, parenting time and child support. Given her years of experience, she can also offer insight into how the court is likely to rule.

Experts, if needed, can be agreed upon in mediation. Often agreements are reached regarding counseling for the parties and children as well. It is in the best interest of the parties and children to get the matter resolved which allows everyone to move on with their lives. Drug, alcohol and mental health issues are routinely addressed in mediation, often without a Child and Family Investigator, or PRE, or use of other experts or further delays in the settlement process. Of course, if you already have a report, the mediator will review it and can provide feedback to assist the parties in reaching an agreement.

Myth: The Judge will know better then us on what is best for our children.

Fact: Parents know their children and their children’s needs better than anyone else. Unless you feel like a stranger is your best option for resolution of your dispute, mediating the issues, which allows you some control and flexibility, is often the best method. The judge has a finite amount of time to hear your case, and render a decision. They may not be parents or have no family law experience.

Also, keep in mind that you know the entire history of your situation. The court will only hear a boiled-down summary of the extremes, and typically never meets your kids. With this limited information, the court will then attempt to come up with a parenting plan to fit your needs and is in the best interest of the children. In mediation, the parties can spend more time examining how different parenting plans will affect your kids and your life, and can also ensure that the children have the best possible schedule to meet their needs.

If you have special-need children, whether ADHA/ADA, Autistic, GT kids, or children with physical or mental disabilities, Liz can help you fashion a plan that works. Liz has assisted many families with special-needs children and has a GT child herself. She is aware of the issues of raising special needs children and how divorce affects them. Often Liz can evaluate the case and can suggest options that resolve the dispute.

Should an expert opinion be required, the parties can discuss and agree on who would be appropriate in mediation.

Myth: I have to file something with the Court prior to mediating.

Fact: The Court does not require you to file anything with them before attending mediation. If you do choose to file an action with the court before attending mediation, short deadlines are immediately activated. If you are unable to meet these deadlines due to family or work obligations, or if you just cannot obtain the required documents in the time period ordered by the court, this becomes yet another issue for the parties to fight over, or worse, causes one party to think the other is hiding assets or lying. If the other party refuses to mediate, check your existing agreement to ascertain whether Order to Mediate is already entered. If you have would like to negotiate, but the other party does not, the court will typically grant an order requesting mediation, or will automatically order the parties to mediate upon the filing of the action or motion.

If you have any other questions about the mediation process, please call or email us for more information or further clarification. We are happy to help.

Myth: The mediator should be able to resolve all of our issues in two hours!

Fact: The number one reason mediations fail is insufficient time to work the process. Negotiation takes whatever time it takes to settle matters. Some sessions move more rapidly then others even if they involve the same issues. People take different amounts of time to understand the topics that require resolution, consider their options, or discuss the law or alternatives. One party may be more astute, come in better educated or prepared, then the other party. So be prepared to settle in for the long haul. Do take comfort in the fact that no matter how long the mediation process takes, preparation for court, attending the hearing, and then finalizing the Court’s order after the trial will generally take far longer than mediating. Also, your outcome is never a given. More time spent in litigation equates to higher costs, lower compliance with the Court’s order when compared to a mediated-settlement agreement, and three years (on average) for the parties to recover from the emotional turmoil inflicted by the litigation process and return to effective co-parenting their children.

Myth: The mediator spends equal time with each party.

Fact: The mediator spends time with the party per their needs. For instance, if one party is more prepared or concedes rapidly to the requests of the other, the mediator will inevitably spend more time with the other party. As a neutral, this does not show bias but merely is part of the mediation process. Keep in mind that if you are in the same room, it is typically faster and easier to follow along then when you are in separate rooms.

Seeking an easier path forward?

Effective Conflict Resolution

Seeking an easier path forward?

Effective Conflict Resolution

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