Two roads diverged in a wood, and I –
I took the one less traveled by,
And that has made all the difference
Resolving a divorce and child custody case in court is expensive, stressful and often unpredictable. While a judge must be “impartial” in the courtroom, no one can wholly set aside their individual prejudices and biases. Moreover, the judge’s decision is often final (absent grounds for appeal), even if “unfair.” Happily, not all roads lead to the courthouse and many cases settle through means other than an adversary trial, including:
Kitchen table negotiations between spouses may facilitate the resolution of many issues in a pending or contemplated dissolution, including property division and parenting time. The Colorado Courts website maintains an extensive online database of self-help forms for pro se litigants, including instructions for completion and filing. However, unless you have few assets and are in total agreement about parenting the children, the wiser course is to consult a lawyer prior to filing a separation agreement or parenting plan with the Court. In our experience, even self-represented parties with “uncomplicated” cases later find themselves embroiled in costly post-decree proceedings to untangle home-brewed agreements and parenting plans. If you believe a DIY divorce is appropriate for your situation, it may be beneficial to consider a combination of mediation and/or unbundled legal services (see below).
Unbundled Legal Services
Unbundled legal services is an arrangement in which the client and lawyer select the discrete tasks or services which the lawyer will perform (e.g. drafting a petition or separation agreement for the client to file pro se; coaching a client through mediation). Although unbundled services may include a court appearance or assistance at trial, they are also useful in combination with mediation and/or DIY negotiations when parties are committed to settling out of court. One caveat – depending on the services required, an unbundled arrangement may cost as much as a traditional full-service agreement where you hire a lawyer to handle all aspects of your case.
Mediation is an informal and confidential dispute resolution process conducted by a neutral third party (the mediator). Mediators do not take sides or decide how a case should be settled. Mediators facilitate communication and negotiation between the parties with the end goal of helping them reach a voluntary settlement of all or some of the issues in dispute. The mediator has no authority to impose a settlement on the parties. The decision to settle remains in each party’s control. This is one of the primary benefits of mediation – the parties select the issues, express their opinions and determine the outcome of their case rather than leaving their future in the hands of a stranger – i.e. a judicial officer who does not know you or your family and will likely spend no more than 3 to 6 hours hearing the evidence in your case before making decisions which will impact the rest of your life. Mediation is nonbinding unless the participants come to some agreement which is reduced to a writing and signed by all parties. The Colorado Office of Dispute Resolution (“ODR”) maintains a list of mediators who charge court-ordered ODR rates. ODR rates are typically less than those charged by private mediators. ODR mediators may also reduce their rates for indigent parties who file Form JDF 211 with the Office of Dispute Resolution. When deciding between an ODR or private mediator, keep in mind that Colorado does not certify, license or otherwise regulate mediators (although ODR sets certain minimum qualifications for its approved mediators). While cost may dictate that you use an ODR mediator, all mediators (even ODR ones), are not equally skilled or effective.
Under the collaborative process, each party, together with their respective attorneys, sign a four-way participation agreement. This agreement provides, among other things, that the lawyers will be disqualified from representing their respective clients should the parties fail to reach a consensus through the collaborative process and court intervention is required. The collaborative approach is an interdisciplinary one and the collaborative team may include financial professionals, mental health professionals, mediators and even non-family lawyers to help the parties understand and resolve their issues, plan for the future and navigate the emotional minefield of the divorce. Of course, the more collaborative professionals included on the team, the greater the expense to the parties.
11th Hour Settlement
Some cases settle on the courthouse steps – days or even minutes before opening statements are presented to the Court. At this point in the proceeding, both parties have expended a great deal of time, emotional hand-wringing and money preparing their case for trial. An 11th hour settlement may not be the most favorable to both parties as it typically occurs when one party perceives his/her position to be weak and is fearful of stepping into the courtroom.