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Divorce: Is Mediation Right for You? – Part II

In my last post, I talked generally about Boulder County’s requirement that divorcing couples attend mediation before any scheduled trial or the trial date will be vacated. I also mentioned that, generally, I am a strong supporter of mediation because I have seen it work very well in disputes that I thought would never settle

However, there are certain things that should be done before mediation to ensure that the process goes as smoothly as possible: initially, when it comes to mediation, timing is everything. And second, it’s vital that you have all the information you need when you go into a mediation session or you may end up wasting hundreds, if not thousands, of dollars.

In Mediation, Timing is Everything

Before you can mediate a resolution, you have to understand the law. A lot of people come to see me and say, “We don’t want to spend a lot of money on attorneys, so we’ll just go to mediation.” That’s great, but most of the time, if people go into mediation without understanding the law, they may be shooting themselves in the foot.

For example, I knew a woman who was getting divorced and decided not to hire an attorney. She wanted to do it herself. When I spoke with her, she was heartbroken because she thought there was no way she’d be able to keep the house (which she solely owned before the marriage) through the divorce.   

After I chatted with her for a few minutes, I said, “Isn’t your husband a teacher?” He was. “Doesn’t he have PERA?” I asked. The woman responded that he did, but that she believed it belonged exclusively to her husband... which is not true.

In case you’re wondering, PERA is a teacher’s pension. I explained to this woman that the increase in her husband’s PERA during the marriage was marital property. This just about equaled the increased value in the house, so she was able to “buy out” the house in exchange for not taking her husband’s PERA.

But had she gone straight into mediation without talking to an attorney, she never would have known this and may have had to sell the house.    

It’s important to realize that the mediator is not allowed to offer legal advice to either party. The mediator’s job is to reach an agreement – even if, legally speaking, it’s based on a misunderstanding of the law. Both sides need to understand the law before mediation, and simply meeting with an attorney beforehand can prevent injustices.   

Gather the Information You Need before Mediation

It’s also very important to collect the information you need before going to mediation. If you go to mediation because you and your spouse cannot agree on how much the house is worth... the mediator will not be able to resolve that dispute and you’ll end up paying the mediator for his or her time anyway.

Instead, you should have the house appraised by a professional. Then, you can provide that information to the mediator. 

Along those lines, do your research so you can answer questions like, “What was your 401k worth before you got married?” and try to limit your disputes as much as possible before you go to your mediation session. Choose which issues are the most difficult and work on those with the mediator so you don’t wind up spending the time debating which towels he’ll take and which towels she’ll take.

Understand the Timing of Mediation

All too frequently people come to me saying, “Okay, we’ve been in mediation for 3 months, we got everything worked out, and we’re ready to be divorced.” I never enjoy having to tell them that, in the State of Colorado, you cannot get divorced for 91 days after you file... and since they neglected to consult an attorney beforehand, they didn’t know this when they started mediation.

Which means that they have to wait an additional 3+ months to be formally divorced.

Mediation is a terrific way to resolve your divorce – just make sure you have all the information in front of you before you begin. That most likely means consulting with an attorney. Call us at 303-449-1873 to set up a free consultation.