1.  How does mediation work? What do I have to do?

Mediation is an informal process in which a trained, neutral third party helps people in conflict negotiate a mutually acceptable agreement. A mediator has no authority to impose a solution. Each party will have the opportunity to express their point of view, and the mediator assists by helping the parties to communicate, to identify issues needing to be resolved, to develop options for resolving the issues, and to come to agreement on resolution if possible. The mediator may meet with the parties together or separately or both. There is a two-page information sheet that describes the mediation process and how to prepare for it. Please ask for a copy to be mailed or faxed to you.

2. What kinds of disputes are appropriate for mediation?

Mediation has been used successfully in a wide range of civil (and occasionally criminal) disputes, whether or not a court case has been filed. It works best in cases in which the parties want to work out a solution. It is particularly helpful in disputes in which the underlying issues will not be resolved by a court order, or in which there will be a continuing relationship between the parties. ODR mediates domestic relations, juvenile, dependency and neglect, county court civil, district court civil, and probate cases, as well as disputes which have not been filed in court such as real estate earnest money and employment disputes.

3. The other party doesn't want to work out a solution. Why do we have to mediate?

Courts have authority to order parties to mediate. Frequently once parties are engaged in the mediation process, they find it helpful and are able to work out a mutually acceptable agreement. Even if there is no agreement as a result of the mediation, the parties can benefit from the opportunity to discuss their points of view, and can learn more about the other party's point of view. In ODR's cases, approximately 75% of parties participating in mediation either reach full or partial agreement or leave with a proposed solution and a deadline to respond to the proposal.

4. What is the cost? When do I have to pay?

ODR is cash-funded by fees paid by clients for services. ODR does not receive money from the Legislature. The following fees are charged for mediation and other alternative dispute resolution (ADR) services: for Domestic relations, Dependency and Neglect (D&N), Juvenile, and County Court Civil cases: $50 per person per hour. In cases in which a memorandum of understanding reflecting agreements reached in mediation is prepared outside of the mediation session, there will also be a one-time fee up to $50 per person; for District Court Civil and Probate cases: $75 per party per hour, with a two-hour minimum; plus a one-time $40 per party administrative fee. If mediation is cancelled with less than 7 business days (District Civil and Probate) or 3 business days (all others) notice, the canceling party will be charged for two hours at both party's rate -- $300 for District Civil or Probate and $200 for all others.

5. What happens if I cannot pay at the time of the mediation?

Parties in Domestic Relations, D&N, Juvenile and County Court Civil cases are expected to pay at the end of the session, unless charges are waived for indigency or are being paid by someone else (e.g., sometimes the county social services department will pay for D&N cases). If a party cannot pay at the time of mediation, the party must fill out a Promissory Note provided by the mediator. The agreed-upon repayment plan must be observed. State Judicial turns over unpaid accounts to the State collection agency.

In some local ODR programs, District Court Civil parties are also expected to pay at the end of the session. In other local ODR programs, District Court Civil fees are billed to the attorneys or pro se parties after the end of the mediation session. Please consult with your local program.

6.  I don't have a job, so I can't afford to go to mediation.

If a party in a Domestic Relations or Juvenile case involving parenting issues qualifies, a Federal grant will pay for their portion of the mediation fee. If they don't meet the indigent level, but fall within a slightly higher level, the Federal grant will pay half of their portion of the fee. Funds from this grant are limited, and may not be available in all cases.

If a party in a D&N case qualifies for indigent status, sometimes the county social services department will pay for their mediation.

7. What do I have to bring to the mediation?

If you are participating in a District Court Civil mediation, you will be asked to send the mediator a confidential settlement statement, complaint or answer, and Rule 26 disclosures 10 days before the first session.

If your mediation concerns domestic relations or juvenile matters, a current "Affidavit with Respect to Financial Affairs" must be brought to the first session if child support, maintenance or property division is at issue. Also required are a complete copy of state and federal income taxes for the most recent three years, pay stubs for the most recent three months, and any available information relating to pension, retirement, or profit sharing plans. In addition to the above requirements, for post-decree cases, each party must also provide a copy of the Separation Agreement and, if there are children of the relationship, the Parenting Plan. For all mediations, it is very helpful to have met with your attorney prior to the first session, so that you know what to expect, and what the law says about your issues.

8. Do I have to have a lawyer to mediate?

You do not have to have a lawyer to mediate, but you do so at your own risk. An attorney can help by discussing issues with you and giving you legal advice prior to the mediation, V\()rking with you to develop proposals which meet both parties' interests during the mediation session, and reviewing any proposed agreements before you sign. Mediators are not legal advisers, and cannot provide legal advice to any party involved in mediation.

9. What if I don't have an attorney and my ex does? Does his/her attorney get to be in the mediation even if I don't want them to?

If parties cannot agree as to who will attend the session, either the mediation will be conducted in separate sessions or no mediation will be scheduled. Consult with your local ODR program as to their procedures.  Attorneys in Domestic Relations cases are encouraged to attend the mediation session, or to be available by telephone during the session, in order to increase the likelihood of being able to finalize the agreements during the session. Attorneys should discuss issues with the client before the session, and can review any proposed agreement after the session.

10. What happens if we come to an agreement?

At the request of the parties, the mediator will provide a Memorandum of Understanding (MOU) which reflects the parties' agreements. The MOU can then be submitted to the court, with the consent of all parties, at which time it can become a court order. For example, in domestic cases, if the court approves the agreement, it can become part of the permanent orders.

11. Am I going to have to sign something before I see my attorney?

Attorneys in Domestic Relations cases are encouraged to attend the mediation session, or to be available by telephone during the session, in order to increase the likelihood of being able to finalize the agreements during the session. Attorneys should discuss issues with the client before the session, and can review any proposed agreement after the session. Parties do not have to sign the agreement before consulting their attorney, and in fact, will be told that it is advisable to consult with their attorney before signing an agreement.

12. What happens if we can't come to an agreement?

Mediation is a voluntary process, in which a trained neutral mediator helps to facilitate your agreements. Parties may be required to attend mediation, but are not required to reach agreement. If full agreement is not reached, the remaining issues will be decided by the court.

13. Is this agreement binding?

An agreement signed by both parties can be enforceable as a contract. In order to be sure it is enforceable, it is recommended that a party have an agreement reviewed by an attorney before signing. An agreement can become an order of the court if it is stipulated to and entered as part of a separation agreement, decree of marriage dissolution or other order.

14.  Do I have to be in the same room as the other party if there is a TRO involved? What kind of safety precautions does the mediator employ where there is domestic violence?

If you have any concerns about your safety, or about the provisions of a restraining order, be sure to discuss them with the mediation scheduler or the mediator before the first session. There are many forms of safety precautions that are routinely used, including "shuttle mediation" where the mediator works with each party in separate rooms, holding the mediation in a secure area (such as in a courthouse), having the parties' attorneys attend the mediation, and having the parties arrive and depart at different times.

Exceptions to confidentiality under the Colorado Dispute Resolution Act include that a mediation communication is not confidential if it reveals the intent to commit a felony, inflict bodily harm, or threaten the safety of a child under the age of eighteen. This provision helps to keep the mediation session safe for all involved.

If you have been the victim of physical or psychological abuse by another party, and because of this you do not want to mediate, the court cannot require you to mediate.

15. Can my new spouse come with me? Can my children participate in mediation?

Generally, all parties must agree as to who will attend a mediation session. The mediator can assist in this decision. New spouses, friends and other individuals not participating in the session may come to the mediation site and wait in the waiting room.

Children are almost never a part of the mediation. Young children are not allowed to be present in the mediation session. Even if they are too young to understand the words being spoken, they can be upset by the emotions expressed during the session. Parents should make alternative arrangements for offsite child care. Older children may be allowed to voluntarily participate in the mediation session if, in the judgment of the mediator in consultation with the parties, such participation would be helpful in addressing one or more issues in the dispute. Prior to participation by a child, the mediator should meet first with the parties to consider the possible impacts, both positive and negative, of the child's participation. The child's participation should be limited to being present for those issues in which the child wishes to express his or her viewpoint, and should never involve putting the child in the position of having to choose between the parents or make decisions which should be made by adults. A child's participation must always be voluntary, and not coerced in any way by the mediator or the parties.

Usually the mediation begins with only the parties (and their attorneys, if they wish), and other individuals (if it is so agreed) may be included in later sessions.

16. How do I get my ex to agree to attend mediation?  He/She seems to be avoiding it, and I think it will really help.

If the mediation is court-ordered, the court may enforce the mediation order. If parties are represented by attorneys, the attorneys may encourage them to participate. Often a party is more willing to attend mediation once they understand how the process works and what the benefits are.  The ODR scheduler can provide this information.

State of Colorado
4th Judicial District
Office of Dispute Resolution
Located in the El Paso County Judicial Building
270 South Tejon, Suite B23
Colorado Springs, CO 80903
Phone: 719-452-5005
FAX: 719-452-5046

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