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Tom Martin Aug. 1, 2016

Divorce mediation is a method of alternative dispute resolution that allows spouses to negotiate their divorce outside of court. Mediation can be used to resolve most divorce-related matters, including child custody, property division and spousal support. It offers many potential advantages over traditional litigation, particularly for couples who prefer to part ways amicably and peacefully.

Mediation vs. litigation

During the typical divorce litigation process, spouses must go to court to have their disagreements resolved by a judge who will review evidence presented by each party and issue a final order. Because this process is inherently competitive and tends to pit one spouse's interests against the other, it frequently has the effect of intensifying and prolonging any feelings of animosity between the parties. In contrast, divorce mediation takes place outside of the courtroom in a process geared toward on collaboration and problem-solving, which often helps to minimize negativity and stress.

Mediation does not involve a judge or other outside decision maker. Instead, the outcome of the process is determined entirely by the spouses themselves, who work with a third-party mediator in a series of structured meetings to find solutions that work for everyone involved. The mediator does not have control over the outcome, but rather acts as a facilitator to guide the conversation and provide structure to the negotiations. Often, the spouses will also have their divorce lawyers present for some or all of the mediation sessions to provide them with legal advice and guidance.

In most Colorado divorce cases, the spouses can be required to participate in mediation before they can have their divorce settled in court. However, many others choose to participate in the process voluntarily because of its many potential advantages over divorce litigation. Because mediation depends largely on both parties making a good-faith effort to cooperate and participate in the process, it is generally most effective when undertaken voluntarily.

Spouses who attempt to resolve their disagreements through mediation but are unable to reach an agreement can go to court to have their issues settled by a judge in family court. In some cases, the spouses resolve certain issues through mediation and leave others to be settled in court - either by choice or because they simply could not reach an agreement on every topic.

Benefits of divorce mediation

For divorcing parents, the negative emotions produced by the litigation process can be destructive and counterproductive to the ongoing co-parenting relationship that must continue after the divorce. One aspect of divorce mediation that often appeals to parents is its potential to minimize conflict and animosity between the parties, thus removing obstacles to successful co-parenting. Because conflict between parents is not only stressful for the parents themselves but can also take a heavy toll on children's wellbeing, it is generally in the entire family's best interest to conduct the divorce process in the spirit of cooperation and mutual agreement.

Mediation often helps to eliminate conflict during divorce by helping the spouses to better understand one another's objectives and empowering them to find solutions that work for both of them. By emphasizing collaboration rather than competition, mediation helps put the spouses on equal footing and can set a positive tone for their future interactions as co-parents. The relationship-preserving benefits of divorce mediation can also make it a good choice for spouses who expect to have continued contact with one another for other reasons, such as shared business interests or overlapping social circles.

A related benefit of divorce mediation is the fact that it provides spouses with a greater degree of control over how their divorce-related issues are resolved. This leaves room for more creative and custom-tailored solutions than are likely to result from a litigated divorce. Because the spouses themselves are better informed about their own family's unique circumstances than any family court judge, the flexibility provided by divorce mediation can give them the a better chance of arriving at an outcome that truly meets the needs of everyone involved - parents and children alike.

In addition to the personal benefits offered by divorce mediation, it also has some practical advantages over traditional divorce litigation. Typically, the mediation process is far less time consuming than litigation, which can involve seemingly endless court appearances, motions and counter motions. By eliminating much of this legal back and forth, mediation often allows spouses to settle their divorce-related issues more quickly and efficiently, thus minimizing the amount of time that the spouses must spend in "limbo" before their divorce is resolved.

Not only is mediation typically faster than litigation, but it is also generally far less expensive. This allows the spouses to minimize the financial losses associated with divorce and preserve more of their own wealth for their own families. Even for relatively affluent families, divorce is often a time of financial strain as they readjust to maintaining separate households. Thus, minimizing unnecessary divorce costs can be a wise choice.

For many people, there are also emotional benefits to the added efficiency of divorce mediation, since it may provide faster access to the clarity and closure they need to move on to the next stages of their lives. Another advantage for those concerned with privacy is that, under Colorado law, divorce mediation is completely confidential - unlike courtroom litigation, which in most cases is open to the public.

Limitations of mediation

Despite the many benefits that divorce mediation can offer, there are also potential limitations or drawbacks that may make it less effective in certain situations.

Divorce mediation is typically most successful when both parties are committed to the process and willing to work together. Thus, if either party is unwilling or unable to participate in good faith, mediation may not be an effective way to reach a resolution.

Another factor to keep in mind when considering a mediated divorce is that, although mediation can promote openness and communication between the spouses, it is not necessarily an effective way to get at the truth in situations where a party is being deliberately dishonest. For example, if a spouse is lying about his or her financial situation in an effort to influence the property settlement, the court system has specific rules of evidence and other procedures in place that can help determine the truth. In the mediation setting, however, those tools are largely absent.

Finally, mediation may not be an appropriate choice when there is a large power imbalance or history of abuse between the spouses, since these factors may prevent the spouses from being able to participate in the mediation process as equals.

Although experienced mediators have certain strategies and that they can use to help divorcing couples overcome potential imbalances caused by personality differences - for instance when one spouse is aggressive and outspoken while the other is timid and meek - there are some situation in which those tools are insufficient to put the spouses on a level playing field. In those cases, litigation or another form of alternative dispute resolution may be a better option.

Talk to a lawyer about mediation and other divorce options

Divorcing spouses in Colorado who would like to learn more about mediation and how it could work for them are encouraged to contact a divorce attorney with experience in alternative dispute resolution.