23rd Feb 25 3:35 am
JamieWhile divorce is often thought of as complex, difficult, and contentious, some are easier than others. Some couples are able to easily negotiate all the issues and come to an agreement even before they file their petition to dissolve the marriage. Others have disputes but could work things out with a little assistance, which is where mediation can come in. Some states have mediation laws, and some allow the courts to order mandatory mediation. In either situation, the real question is: does making mediation mandatory make it more effective? Does it solve any problems at all? What can you do to make mediation more effective, whether it is voluntary or mandatory? Speak with an experienced Colorado divorce attorney at Colorado Divorce Law Group by calling (720) 593-6442 for a consultation. We may be able to review your case and assist you with mediating the issues so you can move on more quickly.
Mediation is a conflict resolution process through which a neutral and knowledgeable third party, known as a mediator, assists the disputing parties in resolving their issues. The disputing parties meet with the mediator, present their versions of the conflict, and the mediator guides them toward resolution. The mediator does not give them a resolution or make any decisions for the parties. The basic premise of mediation is that the parties involved are best suited to resolve their issues instead of relying on a third party to impose a decision that neither party may be happy with. Even if the parties do not resolve any or all of their issues, mediation often assists them with finding common ground and clarifying the issues so that things can progress more smoothly.
Mandatory mediation simply means that the mediation is made obligatory by either state mediation laws or by state courts. The federal Uniform Mediation Act of 2003 standardizes the mediation process and establishes the privilege of confidentiality between mediators and the participants, but it does not mandate mediation. This act has been enacted by 13 states, but Colorado is not one of them at this time.
Colorado does not have any state mediation laws that require divorcing couples to attend mediation, nor are there any federal laws that do so. However, many Colorado family courts do order divorcing couples to attend mediation. Generally, if the court orders the parties to attend mediation, it is considered mandatory mediation.
However, in cases where one of the parties objects to mandatory mediation and there are allegations of domestic violence, the court cannot force the parties to mediate. Even in cases with domestic violence, the Colorado Judicial Branch’s A Party’s Guide to Colorado Court-Ordered Mediation explains that there are specially-trained mediators who can handle these cases and that provisions can be included in temporary or permanent restraining orders allowing for mediation. Some possibilities to allow for mediation in these cases might include using separate rooms, arriving and departing mediation at different times, and holding mediation sessions at the courthouse.
The Legal Education Foundation’s Rapid Evidence Review reviewed a number of studies to determine the impact of mediation on outcomes, bias, and experience. From their review, they suggest that mediation generally has a positive impact on the parties’ experiences. Additionally, they found one randomized controlled trial that suggested that parents who went through mediation reported more satisfaction with the process than those who went through traditional litigation.
In general, mediation has a very high success rate, with approximately 80-85% of couples successfully reaching a settlement agreement. This success rate may be due in part to the fact that the parties actively participate in creating the settlement agreement, rather than it being imposed upon them by a third party. By participating in the agreement’s creation, even if each party did not get exactly what they wanted, they still feel heard and as if they got at least some of what they wanted.
While mediation in general is often successful, mandatory mediation may have a slightly lower success rate. While it has many benefits and disadvantages, many people may be resistant to entering into mediation when it is required based on mediation laws or a court order, rather than a voluntary choice that they make. Before discounting mandatory mediation, individuals should consider both the potential benefits and drawbacks associated with it.
One benefit of mandatory mediation is reduced court congestion. When divorcing couples can settle some or all of their issues in mediation, it can clear the court dockets by removing cases that no longer need to be heard and shortening the trials for those that do. This will allow those cases that cannot be resolved by mediation to be heard more quickly.
Mandatory mediation can also be cost-effective, saving money over the expense of potentially lengthy divorce litigation. Mediation can also serve as early conflict assessment, allowing the parties to consider the weaknesses and strengths of their case, so they can either strengthen their weaknesses or be aware of where they may need to give in because they do not have a strong enough case.
Mediation laws may make mediation obligatory, but they cannot force someone to compromise if they are unwilling. If one or both parties feel forced to participate, they are less likely to be genuine in their negotiations. Mandatory mediation is also ineffective in highly contentious cases, when the parties are particularly hostile toward each other. When there is significant animosity, the parties are more likely to try to dominate the mediation and “win,” than to engage in sincere negotiations seeking the fairest and most reasonable outcome.
Finally, there are concerns about fairness when mediation laws or the courts require mandatory mediation. When mediation is required, one or both parties may feel pressured to settle for less than they deserve. This may be because they feel that they are not just required to participate, but also required to come to an agreement.
While mediation can serve as an excellent tool for resolving divorce issues, many couples are unaware of this conflict resolution option, and those that are aware often do not think about it when it is purely voluntary. However, when the courts order mandatory mediation or mediation laws are enacted to make it a requirement, couples may be reluctant to participate because it is required. There are some considerations that could make divorcing couples more willing to participate in mediation even when it is obligatory.
When an individual or couple has previously tried mediation with an inexperienced or unskilled mediator, they can be wary of trying mediation again. In preparation for mediation, choosing a qualified mediator, with extensive experience, knowledge, and skills, can make the mediation process smoother and inspire trust for the participants. The Office of Dispute Resolution offers a selection of mediators who have a minimum of 40 hours of mediation training, have acted as lead mediator in at least 20 cases, undergo a minimum of 10 hours of continuing education annually, submit to a background check, and have substantive knowledge of the subject areas.
The Mediation Association of Colorado (MAC) has more than 150 professional mediators, and has membership requirements including 40 hours of mediation training, 10 hours of continuing education per year, and the completion of a minimum of 100 hours as a solo or lead mediator. Additionally, the experienced attorneys with Colorado Divorce Law Group may also be able to recommend highly experienced and skilled mediators that we have personally worked with to set your mind at ease.
Mediation laws and court orders for mandatory mediation are often blanket demands that all cases be mediated. This can be a significant problem as not every case is suitable for mediation. Highly contentious cases with lots of hostility, divorces with domestic violence, or cases with disputes over ownership of an asset or other issues that require a legal decision to resolve may not be appropriate for mediation. Ordering these types of cases to mandatory mediation can frustrate the parties and leave them with a mistaken belief that mediation is not helpful.
Instead, mediation laws or the courts should allow for assessing each case on its own merits and determining which cases would benefit the most from mediation. This would enable some of the same benefits, such as lightening the court docket of some of the load, while also ensuring that those cases that would not benefit are moved along more swiftly to trial so the parties can get resolution.
Mandatory mediation can be confusing for people who are unfamiliar with the process. The mere use of the word mandatory may confuse someone into believing that coming to an agreement is mandatory, not just engaging in the process. Clear communication regarding the process, including details about how the process works and what the participants must do (such as making a good faith effort to negotiate and find common ground), can help clear up a lot of confusion. Offering clear and concise expectations, such as explaining that participation is mandatory but agreeing on all the issues is not or stipulating that the participants must engage in a certain number of hours or sessions of mediation before they can declare it is not working, may also encourage more successful mandatory mediations.
Sometimes people simply need to be rewarded for their participation. Offering incentives for participating in mandatory mediation may help encourage more successful mediations. One potential incentive could be reducing the 91-day waiting period Colorado has before a divorce can be finalized. For example, this incentive could offer that divorcing parties who engage in a certain number of mandatory mediation sessions will have their waiting period reduced to 60 days or if they can create a settlement agreement in mediation, the waiting period will be waived.
Other potential incentives include reductions in service requirements, and offering priority for trials to divorcing couples who participate in pre-trial mediation. While none of these are currently offered in Colorado, these and other incentives could encourage more divorcing couples to make a good faith effort to participate in mandatory mediation, whether through court order or mediation laws.
Mediation can be an extremely effective conflict resolution tool in divorce. Many couples find it helpful, but it can be difficult to engage when it is obligatory. While Colorado does not have mediation laws, the family court does often order mandatory mediation for divorcing couples. At Colorado Divorce Law Group, we have spent years working with mediators and can offer invaluable insight into who may be the right fit for your case. We can also assist by representing you in mediation and ensuring a fair settlement agreement whether you are mediating your divorce, allocation of parental responsibilities, or want to modify or enforce a divorce decree. Call (720) 593-6442 and allow us the opportunity to review your case and see if we may be able to recommend a mediator or offer other potential solutions to your divorce needs.
