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        Regarding family law matters, the Court may require mediation in divorce - dissolution of marriage, legal separation, declaration of invalidity - annulment or paternity actions.  Mediation is frequently conducted through the Office of Alternate Dispute Resolution - ADR - Mediation.  The parties may request a state trained private mediator.  The ADR fee per party is currently $50 per hour with a two hour minimum, resulting in a $100 minimum fee per party to the mediator.  Additional hours would be billable by the mediator.

1.         The goal of mediation is to avoid court fights where settlement can be achieved through sitting down and talking in a neutral setting.  If mediation fails, a litigant remains entitled to his / her day in court.  In some circumstances (domestic abuse or domestic violence) the court may waive required mediation.

2.         Litigants will attend 1 or 2 sessions with the ex-spouse or opposing parent and a neutral third party (mediator) in attempt to reach agreement on the issues of the case.  Mediators are trained by the State of Colorado to keep the balance of power equal between the parties while negotiating.  Mediation is not marital counseling or relationship therapy.  In El Paso County, many judges require mediation before the judge will allow setting of contested final contempt hearing.  If this is applicable, litigants must attend mediation . 

3.         Each party has the right to counsel during mediation, but attorney presence is not required.  Not taking counsel decreases fees, however a client may be disadvantaged by lack of counsel.  It is my preference not to attend and save the attorney's fees, subject to below.
                   a.  If the opposing party plans to bring counsel, that nearly mandates appearance by counsel for both parties.
                   b.  In a family law case on the merits seeking original decree, it is common for one party or the other to have held the majority of power in the relationship.  If I represent the party subject to manipulation, counsel's attendance becomes more imperative.  Although mediation is non-binding as indicated in ¶2 below, opposing counsel or party frequently hammers an unfavorable tentative agreement.  If the "Powerful Katrinka" is my client, counsel's attendance at mediation is less important.
                   c.  In support enforcement contempt proceedings, I recommend presence of counsel is worthwhile.  An attorney will aggressively terminate any manipulation attempts by the other party and hold the obligor accountable.  If obligee is resorting to the remedy of contempt, obligor should not be left with opportunity to further manipulate, obfuscate, confuse or delay.

4.         Agreement in mediation is not required.  If the parties do reach agreement, it is not binding and subject to later approval of legal counsel.  Whether agreement is reached or not, a litigant is not bound by recommendations of the mediator.  If the parties can not reach agreements, a report is made to the judge that it was unsuccessful without stating who caused the breakdown.  A client should consider in advance whether he / she wants to take his / her attorney.

5.         Absent attorney presence, I believe:
                   a.  Complex financial matters are not proper subjects for mediation. A party may be disadvantaged by insufficient knowledge.  If my clients decline my presence at mediation, I instruct them to advise mediators that his / her attorney has instructed not to discuss such issues.
                   b.  Contempt proceedings are not proper subjects for mediation.  The obligor has every reason to seek delay or to manipulate.  Obligee may be disadvantaged by insufficient knowledge of applicable law or obligor's resources, or disadvantaged by obligor's attempted manipulation and by obligee's frustration at prior inability to collect support.  If counsel is not present and the client feels guilt, threatened, coerced or disadvantaged in any manner, I advise my clients to tell mediators that his / her attorney has instructed not to discuss such issues or re-set when counsel may be present.  I make every effort to avoid mediation in contempt proceedings, but that call is up to the judge.

        Court cases settle or for some other reason parties will be unprepared to litigate on the set trial date. Therefore the court dockets multiple cases for final hearing at the same time. When counsel sets final orders hearings, rank on the docket is known. The higher the rank, the longer the delay between setting date and hearing date. Even with a top ranking, another case formerly set which took longer than anticipated or which was previously bumped may take priority. Put simply, much to the chagrin of counsel and litigants, cases are not always heard on the date set for trial.

        Parties to litigation may submit a portion or all issues for arbitration. Arbitration hearing dates can generally be obtained much more rapidly than a court trial date. The decision to arbitrate must be given freely and voluntarily by each party, and congested court docket or having been bumped from a court trial date is a common factor in the decision to arbitrate.

        Arbitration is frequently conducted through the Office of Alternate Dispute Resolution - ADR - Mediation, however the parties may agree upon a private arbitrator. If the parties agree to arbitrate, but can not agree upon the individual arbitrator to be employed, the court will appoint an arbitrator.
                See CRS 13-22-205 - Appointment of arbitrators by court

Expense to the Parties

        In a court trial, the parties do not pay the judge for his / her time.

        The ADR fee per party is currently $65 per hour. Billable time generally includes arbitrator conferences with parties and others; review of correspondence and other materials submitted for the arbitrator*s consideration; drafting of correspondence and the arbitration award research and preparation time; travel time and telephone conferences with the parties and others. The parties are also responsible for costs, which may include photocopying and flux expenses; travel expenses and long distance telephone charges; and any other reasonably necessary expenses.
                See CRS 13-22-212 - fees and expenses of arbitration

        It is a financial detriment to arbitration, but that consideration may be outweighed by the advantage of disposition months in advance of an available court trial date.

Potential Arbitration Agreement Clauses

        When the parties agree to arbitration, the agreement includes a waiver of their right to court trial of issues to be submitted for arbitration. The waiver includes jury trial if that right existed. The arbitrator*s decision and award is final and binding as to all claims which were raised or which could have been raised in the arbitration, and judgment upon the award rendered by the arbitrator may be entered in any court having competent jurisdiction.

        If the parties attended mediation with the arbitrator or ADR, the contract may contain a clause which authorizes the arbitrator to consider at final orders hearing any and all information expressed in that prior mediation session.

See CRS 13-22-203 - validity of arbitration agreement.

        Each party is entitled to representation by counsel. 
        The right to counsel may be waived a hearing, but not before.
                See CRS 13-22-208 - representation by attorney

        The parties may request discovery proceedings, e.g. deposition. Subpoena may issue for witness attendance or subpoena duces tecum for production of documents or other evidence. It is common to submit pre-trial statements and trial briefs to the arbitrator prior to hearing, and evidence is presented to the arbitrator as if submitted to a judge in a court trial.
                See CRS 13-22-207 - hearing

        After formal hearing, each party may submit proposed findings of fact and conclusions of law. The arbitrator enters an award which includes detailed findings of fact and conclusions of law, similar as would be the case in a court trial.
                See CRS 13-22-210 - award

        After entry of award, the parties may make application for reconsideration or clarification. An application to modify an award tolls the 30 limitation for court motion to vacate.
                See CRS 13-22-211 - change of award by arbitrators
                See CRS 13-22-214 - vacating an award

        With consent of all parties, disputed parental decisions, parenting time and non-recurring adjustments to child support may also be the heard by an arbitrator.  If either party objects and requests modification of the arbitrator's award, the party may request de novo review - complete re-hearing of the issues with all testimony and evidence presented to the court.  In the event of a de novo review by the court, attorney's fees, costs and arbitrator's response fees are to be awarded to the prevailing party unless award would be manifestly unjust.
                See CRS 14-10-128.5 - appointment of arbitrator - de novo review of award

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