Mediation: What is it, and Why?

By Jake M. Lustig

“I told you this was a bad idea.”

 “You know what, Ken? A bad idea would be to let your client walk outta here today and drag this thing out for another year, wasting more time and wasting more money. The only good idea is to let me and John do our job and mediate this thing right here.”

“You wanna hear the crazy thing? I know it doesn’t feel like it, but we’re making progress.”

“Mm-hmm.”

“We settled the deal with the cars. Let’s see, that takes us to frequent flyer miles. We’re flying!”

 The above text comes from the opening scene to the 2005 film Wedding Crashers. In this scene, John (Owen Wilson) and Jeremey (Vince Vaughn) are conducting a mediation involving two hostile spouses going through the divorce process. In addition to its comedy, the scene provides an excellent illustration of the fundamental role of mediation. That is, by reducing the level of conflict and focusing on the issues at hand, John and Jeremey enable the parties to successfully reach an agreement to resolve their dispute.

What is mediation?

Mediation is a process in which a neutral third party, known as the mediator, facilitates communication and negotiation between the parties to a dispute. While mediation is frequently used in all types of disputes, it has become especially common in family law proceedings such as divorce, custody, or child support. Due to the highly emotional nature of these types of disputes, the impartial perspective of the mediator can often help parties to understand one another and propose possible settlement options.

The mediator does not “pick sides” and does not decide who is right and who is wrong. Instead, a mediator simply allows for the parties to negotiate amicably and help reach a settlement. It is worth remembering that the ultimate decision to settle a dispute will always remain with the parties and not the mediator. Unlike a court proceeding in which the judge will issue a final ruling, a mediation settlement will only consist of the terms specifically agreed to by both parties.

Why do I have to mediate?

In a vast majority of family law cases, the presiding judicial officer will require that the parties mediate prior to a hearing or trial in court. Mediation is usually required by the courts regardless of whether the parties are represented by counsel or pursuing their case pro se (i.e., without an attorney).

The courts recognize that mediation can often be a more efficient procedure in terms of both time and costs for the parties. Furthermore, mediation can often help the courts by allowing the parties to narrow the specific issues requiring court resolution, thereby improving the efficiency of court hearings.

What can I expect of the mediation process?

 When parties (and their attorneys) come together with the mediator, this is known as the mediation session. During the mediation session, the parties may be in one room or in separate rooms with the mediator traveling between the rooms, relaying messages and facilitating progress in the negotiations. At its core, the mediation process is about resolving disputes. Therefore, a mediator will often go through each specific issue affecting the parties and attempt to facilitate an agreement. For example, in a divorce mediation the mediator may focus on helping the parties reach an agreement on the division of certain property such as cars, a house, or bank accounts before moving on to negotiations regarding alimony (known as spousal maintenance in Colorado). Mediation is not an “all or nothing” proposition. The parties can reach agreements on specific issues affecting their dispute while leaving the remaining issues to be decided at a later time.

One of the core tenets of mediation is that the communications and negotiations which take place during the session are confidential. Therefore, anything that is said or offered at a mediation session will not be put before the Court in the event that an agreement is not reached. This assurance of confidentiality helps promote settlement, as it allows the parties to speak honestly and candidly.

If the parties do reach an agreement on all or some of the issues at hand, the mediator (or the parties’ attorneys) will then attempt to reduce that agreement in writing and have it signed by each party. Once an agreement is reduced to writing, the parties will often submit the agreement to the court and ask that the agreement become a binding court order. While an attorney is not required for mediation, attorneys can often play a valuable role by providing on-the-ground legal advice and helping to brainstorm practical and enforceable solutions.

The experienced attorneys at Kinnett & Cordes have helped countless clients navigate the mediation process.

 Our team will ensure that you are prepared for mediation, they will help keep the focus on the important legal issues, and will work with you and any opposing parties or counsel to try to reach settlement during mediation.

Experienced mediator, Jim Delman, is also available to assist parties who may not be clients of the firm in resolving their disputes.

Call Kinnett & Cordes today at 303-968-1711 to schedule a free consultation with one of our attorneys and learn about how our attorneys can assist with any type of family law issue.

Mr. Lustig is an associate attorney at Woody Law Firm. He has been with the firm for two years and is rapidly becoming one of Denver’s brightest new family lawyers. His practice is focused on assisting families from all walks of life navigate the challenges of the legal system when they are faced with major life transitions such as new births, divorce, adoption, etc.