Mediation is out of court method used to work out a settlement in a civil case. It’s frequently used in divorce and family law cases. To understand whether mediation can be appealed, it’s important to understand how the process works and its outcome.
Basics of Mediation
Mediation is a process in which parties meets with a neutral, third-party professional mediator to try to resolve a divorce or parental responsibility (child custody) case to avoid the necessity of a trial in court. Colorado has no certification or licensing of mediators. Most mediators are attorneys or mental health professionals who have received training in mediation. They are not judges, and they are not arbitrators (without your mutual agreement for someone to act as a mediator and if you cannot come to an agreement, to allow the mediator-arbitrator to make a binding decision for you)
The mediator acts as a guide and intermediary, helping the parties identify and work through all of the issues in their case. The mediator does not make any decisions in the case and cannot force the parties into an agreement. Instead, they help the parties find common ground and consider solutions. The focus in mediation is on finding a mutually beneficial resolution for both people. Everything is done by consent.
While it is not required to have an attorney assist a party at mediation, each party can benefit from having their own attorney present who can explain the most likely outcome they could expect in court and help them understand their rights under Colorado law. The level of participation of the attorney in the mediation is up to the client – they can guide the mediation to help the client achieve goals that were determined prior to mediation or let the client do much of the talking about their respective positions. The couple speaks for themselves in mediation and negotiates directly with each other under the guidance of the mediator. The attorneys are also able review the final agreement from the mediation, often referred to as a memorandum of understanding, and handle the legal steps needed to turn it into an order from the court.
When parties handle their divorce through mediation, all aspects of the divorce are able to be addressed and resolved, including property valuation and division, parental responsibilities, child support, and spousal maintenance. If the only issue in a case is parental responsibilities, all elements of custody are resolved including decision-making responsibilities and how parenting time will be shared between the parties.
Benefits of Mediation
Mediation is a popular way to resolve divorce and family law cases because it has many advantages. Mediation is generally less expensive than a litigated divorce or custody case that requires a hearing because the parties works together to find a solution that works for both of them and focuses on settlement, not litigation. It is also usually a much faster process as, if there is an agreement reached, the parties can submit their agreement to the court for review and approval – thereby leaving no additional delays for court appearances or trial preparation if the court adopts the agreement. Negotiations can begin with the initial appointment.
Mediation places power in the hands of the parties themselves, allowing them to take control of their lives and their situation themselves, without having to rely on other people to handle their issues or determine their outcomes. Mediation is also a creative process that allows the couple to come up with personal, tailored, and sometimes innovative solutions (for example, there are often areas of disagreement that are not normally covered by a court order, such as who will do the child’s laundry and whether clothing will be returned to the home it came from – a mediated agreement can include provisions about all of this).
There is no one-size-fits-all when it comes to parental responsibilities cases, and having the freedom to work out a plan and a schedule that is designed by the parents who will actually be implementing it is a tremendous benefit and often results in a more functional agreement to the children’s favor.
The mediation process is healthier for families when compared to litigated cases. There is enormous stress for both parents and children when a divorce or parental responsibilities case moves through the court system because it is, by design, a contentious process. Mediation, on the other hand, is designed to create concordance and locate common ground between the parties. The parties are encouraged to push aside conflict and instead focus on agreement and working together to find solutions they can both live with. They are required to work together.
Parties who go through mediation learn conflict resolution skills, enabling them to better handle conflict that arises in the future. This is particularly important for parents who will be co-parenting for many years. Learning how to resolve disagreements without going to court preserves family emotional health, saves money, and makes for better co-parenting relationships. This also allows the parents to model good conflict resolution skills for their children, in contrast to the trauma of the conflict involved in a litigated divorce or custody dispute.
The Outcome of Mediation
The goal of mediation is for the parties to reach a settlement that benefits both of them and which they both feel comfortable with. They execute a signed agreement, often referred to as an memorandum of understanding or MOU, detailing everything they have agreed to, and that is filed with the court. Once approved by the court, it becomes the judgment of divorce or an order allocating parental responsibilities. This has the same full force as a judgment or order the court issues on its own in fully litigated cases after a contested hearing. Agreements reached in mediation, if approved by the court, are fully enforceable and legally binding.
Mediation and Appeals
While the parties work through the mediation process, they are simply negotiating. The court is not involved and is not issuing any orders or decisions until an agreement is reached. Thus, there is nothing to appeal during the mediation process itself. Once the parties successfully conclude mediation, they will either have been unable to come to an agreement (and head to a contested hearing) or they will have an executed agreement which, once filed with the court, becomes their judgment of divorce or order concerning parental responsibilities. This is a court order which can be appealed if need be.
Mediated agreements can be overturned on appeal if there was some kind of fraud involved, such as if assets were not fully and honestly disclosed, or if a party provided false information regarding the marital estate. Fraud could also involve altering the agreement after it was signed or defrauding a person into signing something they have not read or were unable to understand. Additionally, if the agreement itself is not fair, in accordance with state laws, or is unreasonable in some way, it can be appealed. Prior to entering a mediated agreement as a decree or court order, the court will review the agreement and confirm it meets the requirements outlined under the law.
It is unusual for a mediated agreement to be appealed, but it is possible under certain circumstances. If you are considering mediation for your divorce or custody dispute, the experienced attorneys at Burnham Law are ready to help you. Call our office today at 303-647-9113 to schedule a time to discuss your case.