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How to deal with a Court Appointed Mediator

By Jennifer Rice, Esq.

In Colorado, most judicial districts require that parties attend mediation in divorce or allocation of parental responsibilities cases (unmarried parents) prior to the case being set for trial. What can you expect when the Court orders you to see a Court Appointed Mediator?

Typically the Court will enter an Order for Mediation. You may be given a certain amount of time (usually 7-10 days) to contact the local Office of Dispute Resolution mediators (these are the Court Appointed Mediators in most cases).Hopefully, the contact information for your local Office of Dispute Resolution (ODR) is listed on the Court?s Order.

You may also select a private mediator to mediate your case if both of the parties agree to the same mediator. Usually, the Court will specify that if you cannot decide on the same mediator, you must use the Office of Dispute Resolution. After your mediator is selected (or you use the ODR mediator), you will probably be required to complete an Intake Form. The mediator may ask questions about the parties? contact information, their attorneys, the next Hearing date, and whether a Protective (Restraining) Order is in place. The mediator may give you a range of dates to choose from or they may assign you a date for mediation.Usually the mediation sessions are scheduled for two (2) hour blocks.

After the mediation is scheduled, you may receive additional documents from the Mediator to review before your mediation. You may receive a list of questions about your particular dispute (what issues are disputed? How do you think the issues can be resolved?, etc.) and answers to frequently asked questions about mediation.

When the mediation begins, the mediator usually explains that he or she is not your attorney and is not supposed to give you legal advice. The mediator will usually explain that whatever happens in mediation is confidential with two exceptions.If the mediator hears evidence of child abuse or that someone is going to hurt themselves, the mediator must report it to the police or authorities.The mediator may also explain that he or she cannot be called as a witness in a later hearing and you cannot subpoena (legally request) their notes or their case file.The mediator should also ask your permission to disclose something to the other side if you have discussed it in confidence.The mediator may also ask that you treat each other nicely in the mediation, as you would a professional colleague.You may be required to sign an Agreement to Mediate.

The mediator will usually require that you pay for the mediation session at the time of the session.You may need to ask whether you need to bring cash, check or credit card.The mediator may give you a receipt for your payment.If you do not pay for the mediation or your check bounces, the mediator may send you to collections.After the mediator goes over the preliminaries, the mediator may ask each side what the disputed issues are.It is helpful if you can come with a list of issues or at least have some notes.The mediator may ask each side how they see that each issue should be resolved.Be prepared to briefly discuss your position -- the mediator may not want to hear your life story right then.Think about what you want and why.For example, I want to pick up and drop off the children at 5PM at grandmother?s house because he/she always barges into the house without being invited.

During the discussions, the mediator may ask questions to understand what the problem is or discuss possible solutions.Try to be open to different ideas.The mediator may ask for some time alone with each party and their attorney.The mediator may use this time to figure out whether a settlement is possible or what one side is willing to accept.Remember that you do not have to come to an agreement and nothing is binding upon you until it is put in writing and signed off by the Court.

Some other helpful hints are:

During the mediation, you may experience some of the dynamics of the relationship.Try to stay focused and productive.Try not to get drawn into the old relationship issues, anger, ?water under the bridge? etc.Now is not necessarily the time to start an argument and throw everything in except the kitchen sink.

Try to be patient. If you threaten to leave the mediation, that may not be helpful and may further break down your chances of getting further to trying to resolve the issues.

Now is the time to be creative. Sometimes it is helpful to look at what really is the issue for your spouse/partner.Are they fighting over the ATV etc. because they want it or because you do? Why are they demanding that the children be returned at a certain time? Be willing to look at ways to satisfy your partner?s/ spouse?s needs. Allow yourself the space to ?brainstorm? over possible solutions. You need to pay attention to what is happening.

Do not be afraid to take notes. Issues at mediation can be hard to keep track of.

If you feel either unwanted pressure or tiredness, take a break.This mediation session may be your best chance to resolve the issues and you want to make sure that you are thinking clearly.

Full post as published by Colorado Family Law Blog on October 30, 2007 (boomark / email).