Preparing for Mediation in Colorado | Episode 189

On this episode, Ryan and Amy poured their experience into a conversation that will guide you through the key steps of preparing for mediation in divorce. They dissect the importance of choosing a mediator with the right mix of skills, from understanding complex financial situations to navigating sensitive parenting issues, ensuring you walk into your sessions with confidence and a clear head. They also dissect the art of negotiation, emphasizing active listening and emotion management as crucial tools for successful mediation. 

The dialogue unpacks the essentials of communication, from making strategic offers to understanding the significance of confidentiality and the materials needed to inform your mediator effectively. Ryan and Amy share insights on the interplay between attorneys and mediators, focusing on how to streamline the process and prevent costly misunderstandings down the line.  Lastly, they tackle the reality that mediation is about finding common ground, not winning a battle. It's about shaping a future with stability and predictability, where compromise and flexibility are your allies. 

What is Divorce at Altitude?

Ryan Kalamaya and Amy Goscha provide tips and recommendations on issues related to divorce, separation, and co-parenting in Colorado. Ryan and Amy are the founding partners of an innovative and ambitious law firm, Kalamaya | Goscha, that pushes the boundaries to discover new frontiers in family law, personal injuries, and criminal defense in Colorado.

To subscribe to Divorce at Altitude, click here and select your favorite podcast player. To subscribe to Kalamaya | Goscha's YouTube channel where many of the episodes will be posted as videos, click here. If you have additional questions or would like to speak to one of our attorneys, give us a call at 970-429-5784 or email us at info@kalamaya.law.

************************************************************************

DISCLAIMER: THE COMMENTARY AND OPINIONS ON THIS PODCAST IS FOR ENTERTAINMENT AND INFORMATIONAL PURPOSES AND NOT FOR THE PURPOSE OF PROVIDING LEGAL ADVICE. CONTACT AN ATTORNEY IN YOUR STATE OR AREA TO OBTAIN LEGAL ADVICE ON ANY OF THESE ISSUES.

Transcript

0:03

Hey everyone. I'm Ryan Kalamaya. And I'm Amy Goscha. Welcome to the Divorce at Altittude, a podcast on Colorado family law. Divorce is not easy. It really sucks. Trust me, I know. Besides being an experienced Divorce attorney, I'm also a Divorce client. Whether you or someone considering Divorce or a fellow family law attorney, listen in for weekly tips and insight into topics related to Divorce co-parenting. And separation in Colorado.

Ryan Kalamaya: 0:33

Welcome back to another episode of Divorce at Altitude. This is Ryan Kalamaya. This week, I am joined by my lovely co host, Amy. What are we talking about today, Amy? We're talking

Amy Goscha: 0:48

about mediation today, which I think everyone is hopeful when they start in this process that they can resolve it without having to go to court. So we're going to give everyone step by step tips on how to really make mediation successful and be to be prepared.

Ryan Kalamaya: 1:03

Yeah, when we looked at the topics that we've covered on this podcast, we've gotten into some really esoteric and some into the weeds on some topics, but surprisingly, we have not really discussed mediation all that much. So we thought that having this step by step. Guide to preparing for mediation would be helpful. And one thing that, Amy and I have talked about offline is just the variance in terms of preparation. And I think it really depends on the case, but also just the interaction that we have with other attorneys in terms of the preparation. But Amy, for those, let's set the table here. What's, can you give a brief explanation of what mediation is and how it fits into the whole divorce process?

Amy Goscha: 1:46

Sure. Mediation is a confidential process where you hire a mediator who's a neutral to come in to facilitate, hopefully, agreement, to reach an agreement on the dispute that's at hand. That's very high level. The mediator cannot come to testify in court. In Colorado, most every jurisdiction I have been in has court ordered parties to go to mediation and family law cases. So that's a high level, I guess just background on what is mediation. So it's just usually part of the process and we use it as a tool to see if we can reach resolution, on disputed.

Ryan Kalamaya: 2:26

Issues. Yeah, most of the time when people in an initial consultation, they'll say, I want to go to mediation and I want to that's what they've everyone. A lot of people have heard about mediation and yeah, it's going to be court ordered, but and that means that your court order to attend. It's not court ordered that you have to settle, but I think the statistics are something, north of 80 percent of cases resolve at mediation. And it's a matter of preparing, and that's what we're going to talk about in order to obtain the best possible outcome at. But Amy, I think that I'm you would agree that most people, when they walk out of mediation, they're relieved to be done, but then they have that feeling in their stomach. Oh, did I make a, did I make the right call? And the more that you're prepared. The less likely that you're going to have that feeling in your stomach because you're just going to understand what goes into it. But it's going to be based on compromise. And it really is, I think, critical to prepare. So what's the first step, Amy, to preparing for mediation?

Amy Goscha: 3:40

Really the 1st step is to making sure you understand what mediation is and how you can use it as a tool. We went through and talked about the definition of mediation, but there are some, when I have a client come in, they say, what is mediation? What does it actually look like? So there are various models of mediation. The traditional model that we're used to is that You have the mediator, it's called shuttle mediation, where the mediator goes back and forth between rooms with each client and attorney so they can talk confidentially. There are points where maybe the mediator is in the room with everyone, but when both parties are represented by counsel, that's not as common. We also have, we're not going to go through this today, but you can do a process that's called the shuttle Meet are where part of it is mediation, and then it can turn into arbitration where that person is making. A decision, but the benefits of mediation is that you can be creative. Courts are bound by statutes and rules and they can't necessarily do everything that you and your soon to be ex spouse or co parent can figure out in mediation. It's really a tool to look at, how can we creatively come to a resolution that hopefully is a win for. Both parties and children.

Ryan Kalamaya: 5:07

Yeah, even to take a step back and make sure that listeners understand. So mediation, you settle and you go there and you settle with the neutral 3rd party that Amy, you explain that you addressed the difference between litigation. Is that you don't go to court and have a trial or a 3rd party say this is when you can see your kids in mediation. You agree when you get to see your kids. And to your point, we'll talk a little bit more about some of the benefits, but that you could say. You see Johnny, Eric and Melanie will exchange Johnny at 3. 20 because it takes into consideration that Johnny has after school and you get really, you can get really in the details. And so that is one benefit is just the creativity and the personalization. The other thing is that. It's cost effective in the sense of that you save yourself from future litigation and paying, people like Amy and me to to go to, to, to trial. I think one thing that we should mention Amy is. When you go to mediation and there needs to be, I think, some disclosure of information whether you have to do interrogatories and a deposition and everything before going to mediation, then that cost savings and engaging experts. And I think that's, something that people should take into consideration. There's also a privacy concern because you go to mediation, as you said, Amy, it's confidential, but, people can really keep. They're personal issues private and confidential as opposed to going to trial and airing their dirty laundry and potentially a public courtroom. We've talked about private judges and arbitration and some of those things. I think it's worth mentioning the preservation of relationships and the emotional well being, if you go to mediation and you resolve it, it's more likely that. Two years down the road, you're able to go to that high school graduation for your son or daughter because they and you may be able to sit next to yours, your former husband or wife. And, they, when you have the preservation of those relationships, there's something to be said. The other aspect is just how stressful litigation can be. And then the final point I think is that. Higher compliance I think that people are more likely to follow through on the agreements that they reach at mediation as opposed to being ordered by the court as much as it's supposed to be a court order if there's no kind of real buy in then, it's just prescripted or a prescriptive kind of order by the judge, then, I think that there's something to be said for that in terms of the benefits. Anything else, Amy? Yeah,

Amy Goscha: 7:54

1, 1 thing the question I get, and I'm sure you get a lot is there is some confusion about how the process works. Is mediation like a separate avenue versus the litigation avenue? And just because if you file, the petition for divorce, does that mean automatically we're going down the. Road of litigation and so to just clarify that mediation can be used as a tool at any point in the process. You could do it before you file just because you file the divorce petition doesn't mean that you're on the path, the war path to go to trial, you can do mediation and most times you do mediation after, like you said, Ryan, there's a financial disclosure. So there's, everyone has the information that's needed to figure out how to resolve it. It's part of that process to try to end. Litigation. So just because you start the case doesn't mean that's

Ryan Kalamaya: 8:41

litigation track. And I think that's a great point because you could file, you could go to mediation, you could go to temporary orders and not resolve everything, and then the judge could, I have a case right now where that happened and the judge is saying, I'm going to order you to go back to mediation and we're going to talk next about selecting the right mediator. But the, I also have another case that they went to mediation. They went several times, they exchanged the financial information and they as required, but they didn't actually file. And so now they've reached an agreement. We're. filing now and we're filing the petition, the case information sheet, as well as the sworn financial statements and the full separation agreement. And so everything's going to be done. So it really depends on the timing. We'll talk a little bit more about that down the road, but Amy, what are the things that people should take into mind on the step two and that's selecting the right mediator?

Amy Goscha: 9:41

Yeah, so in Colorado, you can have an attorney who's a mediator. You can have someone who's not an attorney who's a mediator. You can have a previous judge who's a mediator. It's really selecting the right type of mediator for, your case. Is it very a mediator? Nuanced with, kid issues, is it high asset? So really picking the mediator that has that knowledge, but there also is almost like a, what do I want to say? There are certain mediators who are more, directive versus not, there might be certain mediators who say, I, I've been a judge for 20 years, this is how I've seen these kind of maintenance cases go down or you might have someone who is a little more. Facilitative and is not giving that directive. Like feedback. So is there anything, Ryan, you wanted to comment about the style, is the best way to say it. Yeah,

Ryan Kalamaya: 10:33

for me, I think there's both the substance and then there's also the emotional or other kind of other, I wouldn't say soft, but other kind of intangibles. So the substantive aspects, Amy. You and we had Mike Dimona on here and he talked about on the podcast about the difference between the mediation, the MED ARB, and Mike has been doing it for a very long time, so he, and he's a divorce lawyer himself, he's dealt with some really complex Financial disputes and so he might be a better fit for Eric and Melanie Wolfe in their divorce if Financials are the main, dispute, between them on the other hand there could be someone that has a little bit more focus on the parenting issues and custody and they Serve as a cfi or a parenting evaluator or they you know, they just have that knowledge, and I think that it really depends on kind of the issues in involved. I, me personally, I tend to select mediators that are pretty strong in terms of an opinionated. I don't, if the. Mediators just passing, offers back and forth without their input. I can do that with, between the other lawyer and myself. I find it to be helpful that the mediator says, listen, I think you're going to lose on this. Or I, I think that you should stay strong on this. Anyone that. Understands mediation, understands that, whoever the mediator, they're playing devil's advocate in both rooms. And so they're telling Eric, Hey, I think you, you've got some exposure on this. And then on the same, it goes in and walks into Melanie's room or shows up in her zoom breakout room and says. I think you've got exposure on that. And so he's trying to get them to bridge those gaps. And then the other aspect, I mentioned it in terms of being opinionated. And that just works for, that, that's just how I like the mediator. But, there's some where if I have a, if I represent Melanie Wolf, depending on my conversations with her, I might think she might be a better fit with like a. It's a female mediator who's a mom herself who's gone through a divorce and can really say, Hey, I get it. I understand. I see you. I hear you. Whereas, somebody else they, it's just a personality issues and it really depends on the issues that I'm picking up with the relationship that I have with my client.

Amy Goscha: 13:00

Yeah. So I think, and then also deciding, do you want a half day? Is it a full day? That kind of takes us into step three, preparing for mediation. So we had talked about Gathering information, but Ryan, what are some other things? Besides sending materials to the mediator that you do to prepare your client for mediation.

Ryan Kalamaya: 13:19

I think I like to at least have some settlement offers between the parties. And I, articulate that to the other attorney to at least get an understanding of where the. I generally, the first conversation I'll have with the other attorney is, Hey, what are the issues? Are we going to, is, are they really going to be able to reach agreements on parenting? If so, let's like, let's knock that out. And then we don't even have to talk about that mediation. We really get an idea of where people. stand and just understand the disputes. And I think that they're more likely to go into mediation and be successful if they feel heard by the other, by the other party. And that's really difficult in a divorce. But the other aspect is that Just gathering up the necessary information. It doesn't, you can either deal with things on a super high level, if Eric is a business owner, then you could come up with some creative solution or just a spit ball number. And, if Melanie, if I'm representing Melanie, I'm going to say, Hey, listen, there's some like real benefit to moving on very quickly, but you could be leaving money on it. I don't know how much it's worth. And it really depends on. The issues involved, but then other times we're going to wait until mediation until we have some, some ideas of values. And at least my personal preference is to go, if we're going to have experts, a business valuation or an appraisal or a trust expert, I generally try to have them to give me some sort of. informal draft report and that saves on money if we don't agree at mediation, then, we have them do the formal process, but there's a lot of gathering of information, but anything, Amy, that you want to expand on that I just covered? Yeah, I think

Amy Goscha: 15:06

mediation is not successful usually and we see it probably more times than not when maybe the other attorney isn't prepared and hasn't. Doesn't have all the information or, you just don't have all the information. So I think that's 1 of the key things is making sure that you have all of the information updated. And then to agree with the other attorney. What snapshot in time are we looking at? Like, when are we exchanging. Certain balances and, that kind of takes us into. Like mediation is not the time to sit down with a mediator and to go through discovery or to go through depositions. Of course, it's a time where you might have to clarify certain information, but, that's very expensive to be paying a mediator to attorneys. To be doing that. So that's always a balance.

Ryan Kalamaya: 15:54

Yeah, and Amy to ride the coattails there in terms of exchanging information, oftentimes what happens is people will exchange their sworn financial statement. They'll do a basic. Hey, this is what we own. And they start creating a marital balance spreadsheet, financials, or they'll have an idea of what's going to work for the kids. They've physically separated and they have some idea of the parenting schedule that may or may not work for them, but in particular on the financials, I, there, there can be a lag time. There's often a lag time between when those. When Eric gives all of the bank statements and the investment accounts, I currently have this case involving cryptocurrency and the volatility and the balances are changing by the minute. And, you do need to pick a date. Hey. We're going to exchange updated bank statements and it could, you could agree with the other party the other attorney, screenshots are okay of what's in the bank account so that everyone can be operating on the same information and having, I think, an understanding of, hey, you're going to make an offer. Before mediation, right? And or we're going to exchange information and this is how we're going to handle this because As you said that the it's a it's expensive because you've got a mediator you have both attorneys there and if they're saying hey I how much is in our bank account and Melanie has no idea a there's no trust there But b you're just wasting, everyone's time and instead of really getting to the heart of the matter

Amy Goscha: 17:29

Yeah, absolutely. Yeah, there's a time for a deposition, as well, not just even being on the same page for information. So I think. Once you've exchanged the relevant information, you've exchanged offers when you get into mediation, what is the next step?

Ryan Kalamaya: 17:48

The day of mediation, really what we're, you're going to show up and you're, it's going to be either in person, most mediations, at least in my experience now, are being done via Zoom. I had a mediation two days ago with a mediator that I use all the time and she was saying, Ryan, I haven't seen you in like person in quite a while. And it's just I think people, it depends on where, people are. If I'm representing someone in Telluride or Boulder or Denver, then, do they want to pay for me to travel? In the mediator, and really, I think it opens up the availability of really that specialized mediator with kind of a zoom. But what other kind of strategies do you think people should be aware of? Amy, in terms of the day of mediation?

Amy Goscha: 18:31

I think the day of mediation. Best practice would be that there are offers that have gone back and forth, but that might not be the case. So then it's always who makes the 1st offer. And also, I think clients are always concerned about where the mediator is spending time, so usually the mediator will say, just because I'm spending more time in 1 room, that really is no reflection. It might just be on someone's processing, how long it takes someone to process, information, but I do find and I'm sure you find that as the hours of mediation go on. They seem to be more productive towards the end of the day than, in the beginning.

Ryan Kalamaya: 19:09

Yeah, the very beginning, everyone wants to tell their story and so they, oftentimes the mediator will start off in each room and it can be an hour and they'll tell them about the, Eric will tell the mediator about, they, why they're getting a divorce and why, the Melanie's wrong. And then he, the mediator will go into the other room and then Melanie will say, why Eric is, and megalomaniac and like really get into this stuff. And then they, once they get that. Then they're able to move on. One thing that I going back to the preparation and the day of the mediation, I like to meet with, my client. First of all, we send them an overview of the mediation process in terms of preparation. I try to meet with the client and kind of say, all right, this is we're going to probably start here and then we're going to end up there and really ask them, Hey, I want, you need to be prepared to compromise. And what are the things that you're willing to give up? What are your real priorities? And it's amazing to me because, I generally ask people that in the initial consultation and that can often, it can be moved, right? Like those priorities, they can really change. But also to really figure out where they're willing, like what's, where are they going to draw the line in the sand, a funny thing we'll mention that or have a link to it in the show notes. But I like to send people the haggle. It's a YouTube clip from Monty Python, the life of Brian. And it's, just a funny thing about a negotiation. And that I think people. Have to understand how negotiation works in order to really be fully prepared for the day of mediation, but going back to the kind of brass tacks, the mediator will often start in one room and then move from the other room and, the. Who makes the first offer? It depends on, before mediation. If Eric made the last offer before mediation, then Eric's understandably going to say the ball's in Melanie's court. She needs to, she needs to come back with an offer. But I think, do you want to talk maybe Amy about effective communication and some of the other things towards the end, if they do reach an agreement? Yeah,

Amy Goscha: 21:17

so effective communication is really active listening, and it really having your Emotions as much as possible in check, so you're making decisions, not just based off of emotion. And also. Agreements are not final until they're in writing. And so what we have, what's called a memorandum of understanding, it's a document that lists out, what agreements the parties have reached that day, and they, it needs to be signed by both parties and both attorneys. And it's usually a bullet point list, or it can be very detailed. Some people will come into mediation with a draft parenting plan or a separation agreement. So it could be even looking at that document. What I'm seeing more so now, though, are memorandums of understanding. And mediation,

Ryan Kalamaya: 21:59

So what you do is for people, that you have an MOU, a memorandum of understanding, it would say Eric gets, a million dollars, Melanie gets the house and just on a high level and kind of list out the. Particular not the particular the particular deal points, but doesn't really, it's not the 20 page separation agreement with boilerplate saying, how are they going to refinance the house that Melanie is going to keep, and it also depends. The mediation I just had, we had exchanged sworn finance and we exchanged separation agreements and had redlined and really shown some changes. So we just had some critical. Disputes on particular language. And so you can come out of that with a comprehensive separation agreement. But then also if you don't have something in writing it's not enforceable and there's been a lot of case law, you can get, negotiators remorse where, you know, Melanie and Eric could agree to one thing in mediation and then not sign in something. And I've, Amy, you and I have. Where someone just all of a sudden changes their mind. And so if you get an initial on, for example, sometimes we'll do, there'll be a spreadsheet, a marital balance spreadsheet, and they'll agree they'll have, something in, in writing. And, it's. It's much harder to back out on that, but as you said at the very beginning, mediator, the mediator is not going to come to court, so if you feel like you have an enforceable agreement, there's not, it's whatever happened to mediation is going to be confidential, it's not as if you can haul in the mediator and say, Eric agreed and so you can't You know, do that. And, but also at the same time, Amy it's, if it's at seven at night or eight o'clock at night, and both parties are just completely, they're tired. They don't you gotta have to be concerned as a lawyer, do they know what they're signing? And mistakes, mistakes get made. And so do you just have an MOU. What are, and you also have to, I think it depends on the other attorney. I've had a mediation, I've had mediations with an attorney who, they won't sign anything at the very, at the end, but also in my experience I trust them to the extent that they will follow through on those agreements, but you just have to know what. Who you're dealing with. And, I've heard mediators say sometimes they like to draft that MOU, and then you all wait, and then the attorneys go into Zoom on a room, and they'll haggle over the language. But then sometimes one attorney will want to take the lead on, on drafting something. So I think it really depends on how mediation's going and who the players are involved. Yeah,

Amy Goscha: 24:47

absolutely. And I know this is going back, but I just want to make it clear to our listeners that, you can submit what's called a confidential mediation statement, essentially a letter to the mediator or specific documents that are kept confidential. And usually mediators will say, okay, we'll have a conversation in here, but you should tell me if there's something that you, a fact that we talk in here that you don't want me to take to the other side. It, talking about communication, you have to be clear about what is to be kept confidential in one room versus what goes back and forth.

Ryan Kalamaya: 25:19

Yeah. And I think that the preparation and the materials that are sent to the mediator, I, the that's an art versus a science that lawyers can really I think, spend a lot of time kind of thinking about and discussing. The reality is that every case has a booger or a wart, like for. Like one party, right? Otherwise, it would just settle. Then it wouldn't be doing the mediation, but each side has some kind of strengths and some weaknesses and, mediators, when you go in there and you say, I'm going to win, they should just agree with me. And you just list out, I'm going to win on this. I'm going to win on that. And, I've had mediators say okay, Ryan, that's, great. You're a great trial lawyer. When are you going to lose? Because, you don't, you can't win every single issue in a case and it was a, it was a humbling. It was a good experience. It was, eye opening because he was absolutely right. But I think, giving the mediator an idea of, this is where we are. These are the critical issues. Here's some background. I need some help on this issue or I don't agree with The other attorney on this issue. And you have to understand, is it the attorney on the other side that's really driving it? Is it the client? Who does the mediator need to focus on? And it could be that I might have some communication issues with Melanie and I've told her this is not a reasonable outcome and, she just needs to hear it from some other person. And again, that gets into the. Picking the mediator, but there's sometimes I'm going to let the mediator know in advance I need some kind of help here and it's just giving the mediator a heads up instead of Just where you know, you're just winging it at the very beginning and you're just wasting at half, you know half a day

Amy Goscha: 27:03

Yeah I mean I think in conclusion mediation is set up as a tool to help people in disputes to have flexibility. You need to go into it with compromise. And like you said, Ryan, I know it's upward of 80 percent of cases that. End up settling whether it be in mediation or before trial, through attorneys or through the parties, but it is a good tool. To try to reach resolution

Ryan Kalamaya: 27:30

it is, and I think that the final point is to really figure out the cost of reaching an agreement versus continued litigation. Because there's both the emotional cost and I don't think people really. Understand how stressful and the cost of missing their work and being distracted and, that and just not being present for their kids and the cost of going forward both from a monetary standpoint, as well as that emotional standpoint. And the reality is that mediation, it's like an insurance policy. You will pay, you will not get everything that you want. You could get more at. trial, but you are getting something in return and that is stability and consistency and predictability. And I think that's something for people to really understand because when they compromise and they're able to be flexible they're often more happy reaching agreements at mediation, but you got to have a plan and be able to be flexible and creative to, to really. Move on in your life after mediation. Thanks for joining us on Divorce at Altitude. Hopefully this episode on preparing for mediation has been helpful. And please let a friend know about the podcast if you found it helpful. And feel free to reach out to us and give us any feedback on episodes or what you liked or didn't like from this particular episode. Thanks. hey everyone. This is Ryan again. Thank you for joining us on Divorce at Altittude. If you found our tips, insight, or discussion helpful, please tell a friend about this podcast. For show notes, additional resources or links mentioned on today's episode, visit Divorce at Altittude dot com. Follow us on Apple Podcasts, Spotify, or wherever you listen in. Many of our episodes are also posted on YouTube. You can also find Amy and. Law or 9 7 0 3 1 5 2 3 6 5. That's aaa.