Vail Daily column: Mediated divorce
Rhymin’ Simon famously advised that there were 50 ways to leave your lover. Like a locomotive loaded for bear, Train concurred, holding that there were 50 ways to say goodbye. Perhaps I’m less creative. I can think of only four ways to get divorced: Traditional (“adversarial”) divorce where each party gets a lawyer and slugs it out; do-it-yourself divorce where the intrepid souls try to slug it out on their own; collaborative divorce where each side hires an attorney but agree to do less slugging and cooperate to work things out; and mediated divorce which, as it is the subject of this column, I’ll explain more fully in a sec.
Traditional (adversarial) divorce can — but doesn’t have to be — what you are familiar with in TV dramas and the movies. Each party “lawyers up” and launches headlong into the legal fray. The Fray, by the way, as far as I know, has not yet had a thing to say about divorce. While traditional divorce does not have to be bloody, as the knives are already sharpened, it often is. But sometimes, where things are difficult, complicated, emotional or contentious, one has simply got to do what one has got to do to protect oneself.
Do-it-yourself divorce? Well, sometimes folks simply have no economic choice but to brave the minefields of the law on their own. When there are no assets and few complicating factors, such as minor children, with some luck and pluck it may be doable. Generally, though, you get exactly what you pay for.
Collaborative divorce is a brave new frontier. Sometimes it works and sometimes not so much. The hallmark of this process is that the parties (generally separately represented) agree to agree. Normally, both spouses and their attorneys sign an agreement that requires the attorneys to withdraw from the case if a settlement is not reached and the case goes to court. Most collaborative divorce attorneys will not represent you if you end up in divorce court. You will have to find an adversarial attorney.
And so, continuing the musical theme with which we started, this brings us back to “doe,” or in this case, more accurately, back to mediated divorce. So, you ask, what is it?
First, it is worth noting that “mediation” is a process by which a neutral helps the parties come to their own resolution. A mediator can’t “decide” for the parties, not even, one supposes, what to order for lunch. A skilled mediator can, however, guide, educate and supply a steady hand to the tiller of emotions that most times swirl about a marriage that has failed the tempests of a life together. Simply, a mediator keeps the players on an even keel while they work out their differences between them. Incidentally, in all courts of this state, mediation is required before the parties may advance to trial whether they are represented by attorneys or not.
Mediated divorce, then, can be sliced a couple of ways. The parties in an adversarial divorce at some point in the process come to mediation with their lawyers to try to work things out before proceeding to try their differences in court. Do-it-yourselfers can also come to mediation, in their case sans counsel, in hopes of reaching peaceful resolution. “Standard” mediation is an adjunct to the process of divorce and, generally at least, takes place over one day or even less. While it can be, and often is effective — and many times is all that’s needed — by its very nature, standard mediation is less comprehensive than a third way which is a more in depth and attenuated process.
In the third type of mediated divorce, the parties retain an agreed-upon mediator and engage him in a “process” whereby the three (the mediator and the parties) engage in a continuing dialogue, sometimes over weeks or even months. Bit by bit, they tackle the often thorny problems associated with divorce and the mediator helps the couple come to a mutually acceptable solution. While the mediator cannot “take sides,” what he can do is soothe, educate and lead the parties to a calm and rational solution. Bit by bit, the three of them working together and cooperatively can sort out the often thorny issues of property division, maintenance (what Colorado calls alimony), child support, parenting and others.
What’s more, under Colorado Rule of Civil Procedure, Rule 11(b), the attorney/mediator can help the couple “write up” the various documents that must be filed with the court to get to the goal line of divorce. In writing things up, however, the mediator may act only as a “scrivener,” memorializing in writing what the parties themselves have agreed to. In so acting, the mediator/attorney must advise the court that he has not represented either party but, instead, has only mediated the divorce on their mutual behalves and helped them draft the necessary instruments.
While this sort of mediated divorce can help preserve both financial assets (it is almost always cheaper than adversarial divorce) and the parties’ healthy relationship with each other (a particular concern when there are children of the marriage), the mediator must make clear that he is representing neither party and if the parties get “sideways” with each other, he can and will represent neither. Neither can or the mediator will formally “appear” in the action and the parties will, instead, appear “pro se” (that is on their own behalves). As such, the parties will be required to appear in court both at the outset and conclusion of the action to finalize the agreements they have reached. This is generally “pro forma,” where the judge simply makes sure that the agreements entered into were reached without duress or undue influence.
If the parties can cooperate and communicate effectively, then mediated divorce is often the least hurtful, most productive and least expensive way to conclude a marriage that has failed. To do so effectively, however, the parties must understand that they must make the ultimate decisions and, guided by the rules of legal ethics, the mediator/lawyer must remain entirely neutral. If one or the other of the parties is looking for an ally in the mediator, this process cannot work.
It is worth considering as well, that if the process fails, the parties will have to start over, likely in a more traditional and adversarial process.
For some folks, this sort of mediated process is a godsend. If they can work together without undue rancor, they have perhaps the best hope of remaining friends and, even more importantly, effective co-parents to their children.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 or at either of his e-mail addresses, email@example.com or firstname.lastname@example.org.