14th Sep 25 8:32 am
JamieMany couples struggle with divorce agreements. Whether the issue is that you both want the same thing and only one can have it, or that you each want different things and must find a solution that brings you together, trying to resolve these disagreements can be frustrating. When you are in the middle of divorce mediation, whether voluntary or court-ordered, you may feel you must find an agreement. That pressure can make an impasse even more exasperating. How can you deal with impasses? Must you agree in mediation? Knowing your options before you walk into your first mediation session may make it easier to deal with whatever happens. Speak with a skilled Colorado divorce attorney at Colorado Divorce Law Group by calling (720) 593-6442 to schedule a consultation. We may be able to assist you by referring you to a qualified mediator or brainstorming potential agreements that you can bring to the mediation table.
The general definition of an impasse is a situation or disagreement in which no progress is possible. Impasses are also called deadlocks, stalemates, standoffs, or standstills. In a legal context, this is a point in negotiations where a deadlock has been reached because the parties have exhausted all reasonable efforts and cannot resolve their differences. No further progress is possible because neither party is willing to compromise or change their position. Impasses can occur at any point in the divorce mediation process and may apply to only one matter or impact all issues.
There are many reasons that can be behind an impasse. Couples in divorce mediation may find that just one reason is the culprit, or they may realize that several reasons are responsible for their stalemate. Understanding the possible reasons behind an impasse, and being able to identify the specific reason or reasons contributing to a couple’s deadlock, can be beneficial to overcoming this obstacle.
Some of the reasons an impasse may occur include:
Understanding the reasons behind a potential impasse can go a long way toward helping divorcing spouses avoid an impasse. However, there are other things they can do to avoid one as well. A key method of avoiding an impasse is to begin mediation with a positive attitude and a focus on resolving the issues. Being optimistic and determined to find solutions creates a mindset that things will go well, which can make the individuals more willing to work together.
A willingness to be flexible and willing to compromise is also key to avoiding an impasse. Instead of going into divorce mediation with a firm position and a determination to get what they want, individuals should be willing to discuss options. Discussing goals, priorities, and concerns before mediation can help with this, and can also help individuals gain clarity on what their priorities are. Identifying potential areas of agreement and disagreement upfront can also help avoid an impasse. Knowing what topics are most likely to result in disagreement can allow individuals to consider the outcomes they would like to see and which ones they may not like but could compromise and live with can help avoid impasses.
When parties reach an impasse in divorce mediation, they may feel a sense of hopelessness. A standstill in negotiations can cause the parties to feel that litigation and a judge’s decision are the only options left, and they know that a judge’s decision is not likely to be a solution they would find ideal. Fortunately, there are a number of strategies divorcing couples can try to overcome the impasse before they resort to litigation.
Sometimes, divorcing couples reach an impasse because emotions are running high. Instead of negotiating for the best mutual outcome, intense emotions cause them to get entrenched in their position and become adamant about getting what they want. When this happens, it can be impossible to move forward.
Taking a break can allow those intense emotions to cool and settle so that everyone is about to think clearly again. When the parties are thinking more clearly, they may be able to see why their position was unreasonable and thus, be more open to discussing compromises. Cooling heated emotions does not guarantee being able to break the impasse, but if those emotions are the only reason for the deadlock, it may be successful.
In some cases, the parties have talked about an issue to the point where neither of them can see the issue clearly anymore. They feel as though they have exhausted all reasonable efforts, but they really are just mentally and emotionally exhausted and unable to look at the issue as objectively as possible.
When this happens, setting the issue aside temporarily can help. Moving on to other issues that are less intense or that they have not talked about can allow them to feel refreshed as they explore the new solutions and perspectives that the new issue offers. If they successfully find a solution to the new issue, this can often encourage them to revisit the previous issue and successfully find an agreement.
Underlying fears, concerns, and questions often feed a person’s position. If these interests are not voiced and addressed, the individual may dig in their heels and become even more determined to get the outcome they seek because it gives them a sense of control. Taking the time to explore these underlying interests can help break an impasse. The other party, the mediator, or the court may be able to address those interests, offering reassurance or clarity that allows the individual to better understand the issue or to feel more in control because they have more information. This can allow the person to be more open to other options besides the outcome they have been pushing for.
Shifting the focus from the position that each person is holding to the underlying interests can allow the parties to reframe the issue. When the underlying issues are addressed, the parties can look for shared goals and potential areas of compromise. When they start finding these shared goals and areas of compromise, this can open them up to finding creative solutions to their issues.
Often, divorcing couples have heard about the traditional solutions to their issues and think that those are the only options available. They may not like any of those options, but they reach an impasse trying to make one of them more palatable. Divorce mediation is not about choosing one of several pre-determined choices. Instead, the parties can encourage creative solutions.
Creative solutions might include putting together multiple short-term solutions to create one larger, long-term solution, or agreeing to trial periods of different solutions to determine which one may work better for everyone involved. Parties may find other unique solutions that are rarely or never used but they work for their circumstances. When exploring solutions, individuals should remember that finding ones that work for them is more important than settling on a common solution that does not.
Experts such as financial analysts or child psychologists may be able to provide insights and information that can give the parties a deeper understanding of the issue. This deeper understanding can allow them to reconsider their position and be open to other perspectives or finding new or different solutions. If the parties are unsure whether an expert could assist in their impasse, their mediator or an attorney may be able to help them decide. An experienced divorce attorney with Colorado Divorce Law Group may be able to refer you to a mediator or the experts you need in your divorce mediation.
In divorce mediation, a caucus is when the mediator meets with each party to the case individually so they can more freely express their concerns and explore their underlying interests. For many individuals, the mere fact that they are divorcing their spouse means they do not trust their spouse with their deepest concerns, fears, worries, or doubts. A private meeting with the mediator can allow each spouse to express those deeper matters. This provides the mediator with more information about these sensitive matters and allows each party to discuss options privately. When both parties return to the sessions, the new information gained in the caucuses may allow the mediator to guide them toward solutions.
Mediators do not make decisions nor do they force parties to accept decisions or solutions in divorce mediation. However, they can offer a neutral path forward with a proposal that addresses the core interests of both parties and offers a potential settlement or solution. Neither party is required to accept the mediator’s proposal, but it can give the parties a fresh perspective and a neutral solution they may not have considered or thought of themselves.
Not only can previous agreements be a potential solution, they can also be a chance to highlight progress the parties have made toward a solution before. In some instances, reviewing prior agreements may allow the parties to take parts of different agreements to create a new agreement that incorporates the best of all previous agreements for a new, better agreement. Even if they do not help create a new solution, looking at past agreements reminds the parties that they have found agreement in the past and therefore, can find it again now.
If the parties know there is a particular topic that will be likely to cause an impasse, or if they have reached an impasse on a particular topic, they can try dealing with smaller, less contentious issues instead. By agreeing on these smaller, less divisive issues, they can build momentum and collaboration, which can increase the chances that they will find agreement on the bigger issue when they address it.
Instead of sticking to traditional solutions that are typically used in these cases, or being determined to get the solutions the parties each think they want, they can try brainstorming a wide range of potential solutions, regardless of how ridiculous or unfeasible they seem as long as they are legal. Then, they can work together to narrow those solutions by evaluating their feasibility, ability to meet the needs of all parties, and other important factors.
Sometimes, the parties are so entrenched in their positions that they can no longer see anything clearly. They may need to talk with the mediator or their attorney about the potential consequences and implications of their positions. This can provide clarity and the incentive needed for the parties to work together so they can find a resolution.
Mediation is often ordered by the Colorado Courts in the hope that the parties will negotiate an agreement between themselves and not have to litigate their divorce or they will litigate fewer issues if they do need to. The best alternative to a negotiated agreement (BATNA) in many of these cases is going to court and allowing the judge to make a decision. When the parties consider what a judge may decide compared to their current positions, they may find the incentive to let go of some of the more unreasonable parts of their position so they can agree and avoid a judge’s decision.
An attorney can provide legal advice and support during divorce mediation. They can assist in determining whether inventive solutions will be accepted by the court, explaining why a proposed solution is or is not in their client’s best interest, and other information that can assist a party in deciding their next move.
Unfortunately, sometimes a divorcing couple can use all of the previous tactics to try to overcome an impasse in divorce mediation, and still find themselves stuck in a stalemate. When this happens, there are still a few options available to them. These options include:
While there are no Colorado or federal laws that require couples to attend divorce mediation, Colorado’s Office of Dispute Resolution indicates that cases involving family and children, such as divorce, are often referred to mediation by the courts. However, it also indicates that in cases in which either party objects to mediation or certain other circumstances, the court cannot force the parties to attend. This is important because there are instances in which mediation should not occur at all or should be terminated for the best interest and mental health of all parties.
Mediation should be terminated in the following circumstances:
Whether it reaches an impasse or successfully helps a couple resolve their issues, divorce mediation can be beneficial for many people who would prefer to avoid spending more time in court than is necessary. However, there are a few things that divorcing couples should understand about Colorado divorce mediation.
While no state or federal laws require Colorado divorce mediation, many courts in the state will order it in divorce cases, particularly courts in the Denver area. When voluntary or mandatory mediation is successful, it can reduce court congestion by allowing couples to avoid litigation and resolve their divorce more quickly.
When mediation is not successful, the parties must proceed to litigation. Colorado Rules of Evidence Rule 408 provides that what happens during mediation, including settlements offered and/or accepted, remains confidential and cannot be used in court. This gives both parties the assurance that what they say or do cannot be used against them in court, giving them the freedom to negotiate openly and honestly.
While a mediator is neutral and their role is to guide the parties toward a mutually beneficial agreement, this does not mean that an agreement cannot be unfair to one of the parties. If there is a power imbalance or another issue that makes one party feel as if they must go along with what the other party wants or they feel that the unfair settlement is the best they can get, the parties may agree to an unfair settlement and the mediator, as a neutral party who cannot give legal advice, will not say so.
Both parties to divorce resolution should have their own attorney review any agreements they make. A skilled attorney can review the agreement, explain if it is not fair and how it can be more balanced, offer guidance regarding whether their client may receive a better outcome by litigating the issue, or informing the client that the agreement is mutually beneficial and they have made a good agreement.
In rare cases, the spouses may find themselves at an impasse in the formal mediation process, but suddenly making an agreement entirely on their own, outside of mediation. If this occurs, this can still be a valid agreement. If the spouses reach an informal settlement outside of mediation, they should write the agreement down and have their attorney review it. If their attorney approves, the parties can then sign this agreement and submit it to the court for approval and incorporation into their final divorce decree.
At Colorado Divorce Law Group, our Colorado divorce attorneys have extensive experience with mediation. We provide legal support and guidance that is solution-based, including recommending mediators and reviewing settlement agreements. If you have additional questions regarding breaking an impasse in divorce mediation, call (720) 593-6442 to schedule a confidential consultation. We work with clients in Douglas, Denver, Jefferson, Larimer, Adams, Broomfield, Boulder, Weld, El Paso, and Mountain Counties.
