How to deal with a Court Appointed Mediator

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.

What happens if I leave the family home/marital residence?

Clients often ask me what happens if they decide to move out before a divorce petition is filed or while the divorce is pending.

Abandonment. Some states have the concept of "abandonment." Clients worry sometimes that if they move out of the marital residence that it will appear that they are guilty of abandonment. Whether abandonment is physical or emotional, the concept does not affect a divorce in Colorado. Since Colorado is a no-fault divorce state, whether someone "abandoned" the marriage does not matter. Frankly, even if a party leaves the family home and begins a relationship with someone new, however unsavory that may be, it does not affect the divorce or the division of property. The only way it can affect things is if the new boyfriend/girlfriend is a danger to the children. Although someone may say you have "abandoned" the family, you should not worry about moving out affecting your divorce -- legally.

Children. Some clients are concerned if they move out of the house that they will not be able to get "primary custody" of the children. Colorado does not have "primary custody" only a division of decision making responsibilities and parenting time. If you do move out of the marital home, you want to be careful about what the parenting time schedule becomes. Having frequent parenting time with the children may become more difficult if you are not in the marital home. If you move out and happen to have less parenting time with the children as a result, that may be a disadvantage if you later want to increase your parenting time. At a temporary orders hearing, the Court may look at the "status quo" when trying to decide what parenting time arrangement would be best or less stressful for the children.

Domestic Violence. If domestic violence is an issue, for safety, you probably do not want to be living in the same house. If you are the victim of domestic violence, you want to make a safety plan with a domestic violence agency. Sometimes you see people attempt to get a restraining order to force someone out of the house without really having the level of danger that is needed with a protection order. It seems like the protection order forcing someone out of the house is done more as a strategic move. However, if mere annoyance or bad behavior is happening, you want to think carefully about whether to try to obtain a restraining order/protection order to force someone out and use as "leverage" regarding the children -- the Courts do not look on this fondly and it often backfires.
Finances. Some couples cannot afford to keep up two households until the marital property and debts are divided. You may be better off moving into the basement or a spare bedroom rather than incurring the responsibility and debt of a 2nd house or an apartment. You should think carefully about whether you can afford to move out right now.
The Mortgage. The other problem with moving out of the house is that it is harder to control whether the mortgage is being paid, and if the utilities are paid and kept on. While you can ask in a temporary orders hearing that certain monthly bills get paid, you may not find out whether they are being paid until too late. Until the mortgage is refinanced and the bills are placed only in one person's name, any joint debt is still joint debt. The mortgage company can still foreclose and ruin your credit even if your spouse is supposed to be paying the bills. Do not forget that the divorce court cannot affect the contract relationship that you have with the creditors. So even though a debt may be ordered to be the responsibility of one person, that does not mean that the creditor cannot come after you if your name is still on the debt. You may want to work out certain times that you can inspect the house (if your divorce is going to be pending for a long time) or just visit occasionally (assuming that your spouse was not given exclusive possession of the house). If one spouse has exclusive possession, you still can be invited over but I would caution you from just dropping by and using your spare key to snoop around.

Possession. One of the biggest problems in moving out of the house is what I call the "9/10ths rule" that possession is 9/10ths of the law. If you have moved out, the Court is less likely to order that you move back into the house while the divorce is pending if you have already moved out. Generally the Court likes to keep the status quo and is more likely to keep the parties in the locations that they are at the time that they come before the Court.

Divorce Preparation: Step 13 - Be Good

Well, we have finally reached the last step in this series of posts on practical steps to consider when you may be facing divorce. I will wrap up the series with two more posts to conclude and summarize the series. But, first, the final step which may seem a bit silly.

It is simply this: Be Good.

Here is the principle: you are about to be under a microscope. You are reading this blog, so I assume that you may be facing a divorce and you'd like to that unpleasant process to be as amicable as possible. Unfortunately, that is not always possible. Your spouse may not share that objective for some reason. They may be influenced by others (lawyers, friends, etc.) that convince them that what you are offering is not fair.

So, there is a chance that your case will end up going to trial no matter how diligent you and your lawyer are about trying to work the case out fairly and quickly. That being said, you should not put ammunition in the gun for your spouse to use against you.

That means no dating, no carousing, and no partying. If custody may be an issue it means making the children your number one priority (they should be that anyway, right?). Even things that are perfectly legal and harmless any other time can be twisted to look suspicious or worse in the hands of your spouse’s lawyer. I do not necessarily agree that people should not date during the divorce. Sometimes you meet someone who seems fabulous or you are finally open to meeting someone different. However, I would strongly advise against going on the date-tilt-a-whirl and trying to date as many people as possible. That behavior looks like you cannot put the needs of the children first. I would also be careful about dating someone who has a shady past. Now is not the time to start dating someone who just got out of prison, has domestic violence charges, is on parole or probation, has an alcohol or drug problem. You would be bringing that person around the children and it would only make things more complicated and less favorable to you.

Suppose for example that you go out for dinner and drinks with members of the office to celebrate a fellow employee’s birthday. This sounds harmless enough. But, in a custody case these questions may be asked: While you chose to go out drinking with your friends, your spouse was at home taking care of the children, correct? Are you having a romantic relationship with Joe/Jane who was also at the party? How many drinks did you have that night? This is something you routinely did during the marriage, isn’t it (i.e. choosing social events over your family)? You drove home that night under the influence of alcohol didn’t you? Etc.

You get the point. This is a silly example, but why even open yourself up to this line of questioning. Don’t put the judge in the position having to decide whether you are telling the truth that this was a harmless and isolated event.

Spend time with your kids, work, stay around the house, exercise, and attend to your spiritual life. Be above reproach. Be Good. Come to think of it, Its not bad advice whether you are facing divorce or not. I agree that now is the time to take care of yourself. Get therapy, go for a run, talk to friends, join a support group, play with your kids. Do whatever you need to do to keep yourself sane during this process.

Divorce Preparation: Step 12 - Consider a Private Investigator

We continue our series on practical steps to consider when you are facing an imminent divorce. We are now on to Step 12 - Consider hiring a private investigator.

Alabama law does consider “fault” when deciding how to divide property in a divorce. Additionally, depending on the facts, adultery can affect custody determinations. Colorado is a no-fault divorce state. The only grounds for divorce is irretrievable breakdown of the marriage. Fault does not matter to the division of property, debts or parenting issues in Colorado.

If your spouse is committing adultery, then you are better off having proof of it then not. This is the case even where you fully intend to settle your case. In fact, often having proof of an affair is what gets the case settled at terms that are fair to you. Again, not the case in Colorado but if knowing your spouse is cheating makes it easier on you, investigate away!

It is not fun to find out your spouse has cheated, and you may be like many of my clients who have said they would rather not know. But, you should think carefully before making that decision. Talk to your lawyer. Assuming you’ve chosen a good one, listen to their advice. If you are going to get proof of it, now is the time. Your lawyer should be able to talk to you about the costs involved (it is not cheap) and how to improve your chances of making the surveillance effective, should you choose to go that route.

In family law and divorce cases, private investigators are used to observe bad or negative behavior that may affect one's parenting (alcohol abuse, drug use, late night partying, etc.). Investigators are also used to locate and interview witnesses and obtain information about abuse and neglect.

Divorce Preparation: Step 11 - Keep a diary

This post continues are series on practical steps to take when a divorce is imminent. We are now on Step 11: Keep a diary/calendar

It is important to documents all of the major events that occur until the divorce is final. Your lawyer will likely want your help in reconstructing a chronology (a list in order by date) of the major events that led to the filing of the divorce. Additionally, you should begin keeping careful records of new events and incidents as they occur. Simply note the date, what happened and any witnesses that may have observed it. In the unfortunate event that your case drags on, events will begin running together and your memory may fail you. Don't rely on it.

Instead, keep an ongoing diary. Then provide this to your lawyer periodically so he is aware of any significant facts in your case. I do not usually want a copy of the client's diary/calendar. However, I do recommend, especially in contested/difficult parenting time cases that the client keep a diary of problems with the kids, drop offs/pick ups, coordination, etc. It helps immensely when we are preparing a motion or for a hearing and we have dates and details rather than trying to rely on memory about what happened. 

I should note that you really should discuss this recommendation with your lawyer before implementing it. Some lawyers may not want you to have an ongoing record like this because it could be obtained by the other lawyer during the discovery phase of the trial (something that could have a negative effect on your case). Or, they may want you to take certain steps to attempt to protect it from begin discoverable by the opposing lawyer. These are technical legal issues beyond the scope of this blog. Suffice it to say that you need to talk this over with your lawyer first. In my experience, the Courts do not want a copy of your diary, so attorneys are not asking for it in discovery. The Court wants to hear from you, on the stand, what happened. The diary/calendar helps you to remember what happened when and most importantly details about what happened.