Arnold Swartz and Associates
Business and Family Mediation
Mediation is an effective way to make divorce-related decisions. Separating, divorcing or divorced spouses can use this process to address their parenting and financial issues. The goal is to develop solutions that meet as many of the needs and concerns of the children and parents as possible; the emphasis is on mutual satisfaction rather than on winning and losing. The mediator is a neutral, impartial third party whose role is to guide the parties in making their own decisions, not to take sides or make decisions for them.
Most people who are separating and/or divorcing have not been through the experience before. Mediation provides a structure for addressing the decisions that need to be made in a rational, cooperative manner. As the process unfolds, the parties are able to clarify their needs and concerns and find solutions that meet as many of those needs and concerns as possible. Almost all of the issues that need to be addressed fall into one of three categories: parenting, financial support and division of assets and debts. We utilize a two-page check list to make sure that all of the relevant matters are addressed.
With regard to parenting, Colorado family law focuses on the “allocation of parental responsibility” not on “custody” and “visitation”; the latter two terms were deleted from the statutes several years ago. The two main aspects of parental responsibility are the care of the children, including how much time they spend with each parent, and decision making about them. Parents are required to have a detailed parenting plan that specifies how the responsibilities are to be shared. One of the outcomes of mediation is the development of such a plan.
When new issues arise subsequent to divorce that the former spouses are not able to resolve on their own, they often turn to mediation before proceeding in court. This may occur because they participated in mediation during the divorce and were successful. It may be a result of having a clause in their divorce agreement that requires mediation before litigation. Or, it could be due the court ordering them to participate in mediation before proceeding any further with a new motion. A vast majority of the post-divorce matters that are submitted to mediation are child-related, including parenting time, decision making, child support and/or the sharing of child-related expenses.
Mediation has many advantages for adults and children, including the following:
- A “win-win” result is often achieved because the agreement is satisfactory to each spouse and beneficial to the children.
- The parents, rather than someone else, decide what is best for them and their family.
- The children’s ability to adjust to the divorce is enhanced by their parents working cooperatively and constructively, at present and in the future.
- It is less costly, financially and emotionally, than other options, especially litigation.
- A final settlement can usually be reached more quickly.
- Mediation provides a confidential, informal, convenient and comfortable atmosphere in which to address the decisions that have to be made.
- The results stand the test of time. Research shows that people who mediate the terms of their divorce are more likely to live up to their agreements and are less likely to be involved in future litigation than those whose terms are decided by the court.
Mediation is not appropriate for everyone. However, it is likely to be effective in your situation if most of the following statements are true about each spouse:
- Cares about how the decisions impact the other spouse and children.
- Recognizes the importance of a cooperative post-divorce relationship.
- Wants a fair agreement, even if there are differences about what is “fair”.
- Views the process in terms of give and take rather than winning and losing.
- Can listen to the other person’s viewpoint, despite hard feelings.
- Believes that each of them will live up to their agreements.