Understanding Alternative Dispute Resolution Changes in Colorado | Episode 208

Welcome back to another enlightening episode of Divorce at Altitude. Join hosts Ryan Kalamaya and Amy Goscha as they delve into the dynamic world of Alternative Dispute Resolution (ADR) in Colorado, focusing on how it is reshaping the landscape for families embroiled in divorce and custody disputes.

Episode Highlights:
- Overview of ADR: Discover the different forms of ADR available in Colorado, including mediation, arbitration, the roles of Special Masters, Parenting Coordinators, Decision Makers, and Private Judges.
- Trends and Changes: Learn about the latest trends and judicial changes aimed at improving the ADR process for families, ensuring more efficient and harmonious resolutions.
- Judicial and Professional Training: Discussion on the ongoing efforts to enhance the training for professionals and judges in handling family law cases, with a focus on understanding complex family dynamics.

Key Discussions:
- Mediation as a Mainstay: Understand why mediation is becoming a mandated step in most domestic relations cases and how it benefits those involved by reducing the adversarial nature of court proceedings.
- Specialized Roles in ADR: Gain insights into how roles like arbitrators and special masters can expedite dispute resolution, particularly in complex cases.
- Educational Initiatives for Judges: Hear about new initiatives aimed at providing judges with the necessary tools and knowledge to handle family law cases more effectively, especially concerning domestic violence and child welfare.

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Thank you for tuning in to Divorce at Altitude. Whether you are considering alternative dispute resolution or are already navigating the complexities of divorce, understanding the evolving landscape of ADR in Colorado is crucial for making informed decisions that align with your family's best interests.

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.

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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

Ryan Kalamaya: 0:01

Divorce at Altitude. This is Ryan Kalamaya. This week, as per usual, I am joined by my esteemed co host and business partner, Amy Goscha. Amy, what what are we getting into in today's episode? We're talking about alternative dispute resolution in the landscape in Colorado and training when it comes to professionals. Everyone going through a divorce or a custody, what I'll call a custody dispute, they are looking for ways to resolve it so they don't have to end up in court. That's what we're going to talk about. Today. Yeah. So we, when we mentioned a DR we're, we are talking about alternative dispute resolution, the most common that we will talk about is mediation. And, but in, in addition to mediation Amy what else are we talking about with a DR?

Amy Goscha: 0:54

So we're talking about, and we've had some episodes previously, we're talking about arbitration. There's a role called Special Master, a Parenting Coordinator, Decision Maker, Private Judge. Those are all options, and we've gone into those various roles, I know, in other episodes. Today, what we're really focusing on is in Colorado, within family law cases, What are some changes and trends that we're seeing? And what are attorneys and judges looking at to put together to make it better for families going through these types of disputes moving forward in Colorado?

Ryan Kalamaya: 1:30

Yeah, it used to be that the War of the Roses, the kind of famous movie where you just go to trial and you, there'll be a divorce trial. And then, there was no such thing as mediation and that kind of became in vogue and people found a lot of success with that. And I think there is a common, there, there are certain cases that are meant for trial. We an episode recently on parental relocation and made the comment about how those cases tend to go to trial. But there are a lot of people that are like, Hey, listen, our relationship, we should just not be married, but we don't want to fight. We don't want to spend a ton of money. Just fighting over our kids. I think we're fairly aligned. Eric and Melanie Wolfe, they could say, listen, you're a good parent, I'm a bad parent, or I'm a good parent both of us are good parents. And we, our relationship has just come to an end. And so we need to figure out how do we resolve that? So in the context of mediation Amy, what changes or trends have you been noticing with regards to mediation?

2:33

I think in almost every domestic relations case now, most cases are ordered to go to mediation. And I think that the court, and especially the Supreme Court now that we have in Colorado, is really recognizing that family disputes, the dynamics of family disputes are And how you deal with them are very different than how you deal with a a civil trial that's two weeks long or a criminal trial. Essentially, the Supreme Court is really focused on how do we make this better for families and how do we actually resolve these issues? their disputes because what we're seeing, attorneys like us, we're very busy, but we still have this statistic where there's 75 percent of people who are going through family law cases in our Colorado courts are still not represented by attorneys, right? And they're have, they have no help. And that's been a trend for 10 years. So I think that's why there's this big focus on Like mediation, how do we resolve these disputes for families and families are different and how we deal with them in the court setting is different. So that's really the overall trend that I'm seeing is a change.

Ryan Kalamaya: 3:48

Yeah. The I'm on the child innovation committee with. And parenting evaluators and other, lawyers. And we had a presentation by a judge in Massachusetts and there was this there's this program where they have, it's a collaborative law type system that is supported by the judicial system where. People get, they have an evaluator or they have a, a mediator and they really go through in a different mindset. If you look at the adversarial system, which is a plaintiff versus a defendant a prosecutor versus, a defendant. Is that really, I think people are rightfully, asking if Erica Melanie, if they have children and you put them at different tables in the courtroom and they're against each other, are you setting them up for failure? What kind of system has a mother versus a father? And you're having them purposefully butting heads and in conflict. And is that really what's best in particular for children? And so when you go into mediation and you can resolve those disputes voluntarily and amicably, then, that can be a real benefit, especially when kids are involved.

5:01

Yeah, and also, I think just whenever you, whenever people have to sit in the court system, it just can bog everything down. You and I have talked about that moving people through swiftly, even if you have to go to court, like how we manage their case, like people are much happier if they can get a resolution in a reasonable amount of time. And what we're looking at now is courts we're not seeing as many people apply to become judges. We're seeing judges who don't have, a ton of education within the family law area. And we'll talk, about some changes related to education for judges and experts. But it's also just taking longer because the courts are getting bogged down by people who are not represented and having to sit there and explain, here's what you need to do on your sworn financial statement. So it's just bogging down the whole process. So we're looking for innovative ways. To really make this better, which includes ADR.

Ryan Kalamaya: 5:59

Yeah. And if we go into mediation and we don't know what money is in the bank accounts and we don't know how much Eric's business is worth, we sure we can talk about the children and, that sort of the parenting schedule. But, the, it brings in the whole issue of discovery and full transparency and disclosures. But that then brings us into special masters and arbitrators, because they can really get into and resolve quickly. Some of the disputes that could arise over discovery before you even get into mediation or, might not mean that. Mediation is not, necessary. So Amy, can you talk for listeners that haven't listened to the episodes that we've done on, arbitration and special masters, can you give our listeners a little, idea of what you're referencing and why that matters in the ADR, landscape?

6:52

Yeah, and so mediation essentially is, it's a facilitative voluntary process where the mediator is a neutral third party and can't, parties have to reach agreements, whereas arbitration, you have to agree, both agree to do arbitration and the arbiter can make a final award. Essentially a court cannot order parties to go to arbitration, but if they agree, then they can appoint an arbiter. To make a decision so it's a open process where you have to be very specific about how you're going to agree on how to proceed in that scenario. And there are some, if you don't like the award, there are some, possible downsides but even high end clients are looking for other ways to get their. There their disputes resolved, hiring private judge, hiring an arbitrator, you can hire a special master. So the court, if you have a court, like in the metro area, if your hearings not going to get set for a gear out. And you have maybe some discovery disputes, or you have even I've seen premarital agreements, whether or not it's valid or not, a court can hire what's called a special master to essentially figure that out and to render an opinion saying, the premarital agreement is valid, or, here's the discovery disputes, and then the court can, Adopt those as an order of court.

Ryan Kalamaya: 8:22

Yeah. And Amy, you talked about, those, private judges and we'll come back to some of those options, the judge is going to employ the law. What are the other rule changes that are. And for listeners, they may not know, can you give them maybe a background of how, some of these innovative things that are being considered here in Colorado to resolve these disputes?

8:45

Sure. I've sat on the, it's called, so the Supreme Court, the Colorado Supreme Court has various standing committees and they have a standing committee on, Family issues, and so I was appointed to that I believe in 2015. And essentially what the standing committee looks at are what kind of efforts in Colorado do we need to be looking at? For instance, we had a Sorenson issue, there was capacity issues and how do we deal with that? Essentially it's comprised of Judges throughout the state of Colorado, a few family law attorneys, some court facilitators, other experts, like parenting coordinators, decision makers, also parental responsibility evaluators. So all of the kind of constituents that have various perspectives on, what do we need to do to make, the courts, and Family Law run better in Colorado.

Ryan Kalamaya: 9:43

Indeed. And if we go back to some of the other new laws that are being discussed, can you fill listeners in on some of the it's not necessarily an ADR law, but how what are the other changes that are floating out there?

9:59

Yeah, so one thing that I think has been recognized is there needs to be some more education for, instant, for instance, judges might be appointed from the public defender or the district attorney's office, and they might not have a ton of background in dealing with family law disputes and how to rule on those. There's been a need to say that there needs to be more education for experts and for judges, and particularly when it comes to, domestic violence. Like when you look in the criminal code, a lot of times the definition is physical, domestic violence might be like a physical abuse whereas this, the statute really talks about. the effects of emotional abuse and what is course of control and really, defines that. So essentially, we had a statute through the legislature that was passed in May of 2023, setting forth some specific requirements for education, For judges and also experts like parental responsibility evaluators. And there also has been another bill, house bill right now that is in the process. It's 24 House Bill 1350, and it's concerning Essentially parental responsibility evaluators and just putting forth more specific ways that they have to make findings and how the court is to accept, those those reports and that they have to be based off of facts not just theories. So there, there are a lot of changes and the bill also talks specifically about domestic violence, child abuse, child sexual abuse so that I have seen a trend or we've seen a trend where there just needs to be more awareness around these issues. So judges can. Help families move forward.

Ryan Kalamaya: 11:54

Yeah. And if we look at the new law, 1410. 127. 5 that you referenced, I think it's intended to ameliorate some of the concerns about judges saying a mother is just, is a better parent than, a father, or I believe in X, Y, or Z, and it could be, the concept of parental alienation and, or some of these other concepts that, they're not necessarily peer reviewed research backed theories. I was just in a trial and I had an old an expert a PRE actually that was over the age of 60, that was. Talking about the primary psychological parent and about attachment and this bonding and, I had a fortunately I had a, an expert helping me who said there is no peer reviewed research that, like I've done a search. of primary psychological parent in all of the journals and everything, and I'm not finding anything. That concept is just made up and we had the concept of the tender years. There was the tender years doctrine and it used to be, really advantageous to, a mom or something, and that and this 1410127. 5 is saying you, you can't do that anymore. Like it has to be, science backed. In terms of the theories and concepts that are being employed in particular for domestic violence, for child abuse, for these various things because they can really matter.

13:24

Yeah. And they're essentially also what came out of yeah, 1410 127. 5 is there was a task force that was established in Colorado to essentially study victim and survivor awareness and responsiveness to training requirements. Because part of it is when you're looking at changes on a legislative level, funding is always, like a big issue. So we now have the periods that are being regulated you don't have to be on certain lists, but now there's regulation around them and that costs, money. So there is a trend to. Hold professionals more accountable. But also, I think, 1 of the impacts of that, is that we're seeing less people who are available to do these roles, parental responsibility evaluators. We're seeing the trend go down, which then if you can't find an expert, then it just takes. So much more time, to get a report.

Ryan Kalamaya: 14:25

And I think it's helpful to get tied into the ADR context. If you have a mediator or an arbitrator that has that specialized, knowledge, generally speaking, there are arbitrators, mediators private judges, PCDMs, PCDM by. by definition is family law oriented that has background in family law, but there are mediators who specialize in family law. There are private judges that specialize in family law. Judge Arkin, who we've had on the show, she is, one of the kind of select few of family law private judges that always come up in any sort of conversation between Counsel and those family law professionals are more likely to be familiar with these concepts and these new changes in the laws and are, willing to seek out creative, innovative solutions.

15:19

Yeah, and I think I would also mention some jurisdictions do what's called early neutral assessment in certain cases where they will have maybe a psychologist like two people working and it's like a four hour process where you go to court and see if you can mediate a parenting plan really early on, I think we're also seeing early intervention, like early mediations, to sort out even interim parenting plans can like help set families on a, on a right track and someone who has maybe that It's really helpful, when you're mediating those. Interim parenting plans I've been in inner, I've been in early mediations where we're just sorting out. The parents might not even agree they have a child who's allergic to. one. Some kind of food and one parent thinks that it's not as important as the other, like in an interim parenting plan, we've put out like agreements on what kind of like technology is allowed in their bedrooms. What kind of food, should each party. And it sounds so nitty gritty, but those types of little things. can create huge disputes.

Ryan Kalamaya: 16:32

They can create huge disputes, but if you're in an ADR, if you're in an alternative dispute resolution context, it is much more likely that those details are addressed either by the parties through agreement, and that is a huge benefit for mediation. I don't think people understand, and you cannot overstate how Important that is. Eric and Melanie Wolfe, they know their children and their schedule and the particularities of what they eat, their bedtime, all of it much better than any sort of evaluator and certainly any sort of judge. You go to the judge and each party might have, in a day, they might have three hours of testimony. And if you think that the judge, Is going to understand 12 years of parenting for a 12 year old kid. Like they have the control and the opportunity to really dictate, okay, we're going to have this parenting exchange on Tuesday because of the child's, the extracurricular activity, whatever it is. And that control. Really is a huge advantage of, mediation and ADR, and it, you take it to the next step with a PCDM and, or an arbitrator, that arbitrator or that, parentee coordinator decision maker is going to understand that much better than, any sort of, of judge that is presiding over, a thousand some cases.

18:05

Yeah, because if you go to court and say the judge gets, even the, even an odd gear wrong on a holiday, then you're having to file, rule 59 and it can take a while to, get a ruling on those things. Like Ryan said, just having that control and being able to. Get it right in mediation. That is definitely an advantage. I think the Supreme Court Standing Committee, essentially what has been happening recently is we've been, we have a subcommittee. It's called the Domestic Relations Rules Committee. And what we're looking at doing is we're looking at drafting a whole new set of rules related to domestic relations. Essentially, there have been some other states that have taken the rules because it's just so hard. They're all in different places and it's just hard to navigate. And so a state like Arizona they have their rules of family procedure and they lay out very specific rules about. Here's mediation, here's arbitration, here's, what the special master is they have a section for informal trials. There's certain rules that apply that are maybe more lax that are more lax when it comes to issues when they're not as complex and getting things done. Arizona has a rule that says if you've submitted a motion, it has to be ruled on with a certain number, within a certain number of days. I'm sure, Ryan, you can relate to this. I've had motions sometimes sit there, it could be for months. I had a CFI stipulation sit in a judge's inbox for, A few months and it's just because they're so bogged down with cases. Essentially, there is an ADR and other professionals committee. And what we're looking at doing is having a new CFI and PRE rule. Essentially, we're clarifying. The current rules talk about joint expert reports and how each side is supposed to get a draft. That really more applies in a circumstance where you have a business valuation, but that doesn't apply when it comes to the CFI report or the PERI report. It's just clarifying that. It's also clarifying like, when the report gets put into evidence. It also clarifies the trend is to try not to have CFI's and PERI's deposed as much. It just causes delay a lot of times and is more expensive. We're also looking at doing an informal trial rule. We've interviewed judges around the state of Colorado and a lot of them implement that. On their own ad hoc, an informal like trial process that they do within their own courtroom. So it's really formalizing that kind of like. Alaska, and why that matters is it will help cases that don't need as much attention to get through the court system a lot faster. So cases like, we were just talking about a relocation case that needs time can get the time on the court's docket. And then we're also looking at, Colorado has, it's called the Office of Dispute Resolution. So in any case in Colorado, if parties are ordered to mediate and they don't agree upon the mediator, they can mediate through the Office of Dispute Resolution. So right now, that service has just mediators. We're looking at adding possible arbitrators, special masters, other services, so people, can have access to those types of services. So that's just in a nutshell, some of the work, that we're doing to hopefully make things better.

Ryan Kalamaya: 21:53

It's, some exciting stuff is it, we the legal system, the judicial system and the legal industry just in general, generally moves at a glacial pace. We just, as an industry are just inherently. Predisposed to what has worked in the past and but when you see some of the changes with technology, when you see some of the kind of social science that is focused on the results of conflict and what's happening with children and. All of those different things. And you ask yourself, is there, a better, is there a better way? It's great to hear that people are really looking at and Amy, thank you for all the work that you are doing to move things along. I know that listeners I'm sure are interested to hear about the changes and to, think about the problems and the bottlenecks that occur in the system.

22:52

Yeah, I think hopefully it will help with not only the 75 percent who are not represented, but also the people who, you have this people come to me all the time who have millions of dollars and they're like, I just want a solution. So it's making. A DR more accessible and effective, but also making the court system and judges, more aware of how to rule on certain type of issues related to family law matters.

Ryan Kalamaya: 23:19

Indeed. And I think that, the mix a metaphor with, war or, go going to battle. But the more arrows you have in your quid quiver or the more tools that you have in your toolbox is probably a better analogy. The kind of more likely you can fix. Whatever it is, and we can't go back and fix people's, marriage or relationship. But, certainly the more tools that we have at our disposal and a different way of looking at things that more likely it is that we can move, people and help transition them to a new chapter in their lives. Until next time thank you for joining us on Divorce at Altitude.