Most, but not all, of Colorado domestic relations courts order the parties to attend mediation prior to trial. This can seem frustrating, be perceived as adding to the overall cost of the action, and cause concern about further delay of the process. However, mediation is very effective at bringing resolution.
There is a human need to feel heard. Prior to mediation being generally accepted, people were not getting the chance to tell their stories and feel heard until that final big trial. With the introduction of mediation, parties were given that opportunity sooner. Mediation gives a forum earlier in the process to vent, share, and get out each party’s side of the very important and emotional story that is part of dissolving a relationship. As a result, once they feel heard, each party is then more open to resolving the case and addressing the substantive issues.
Now, I have had many clients tell me they do not have such a need. Yet, every single one goes into mediation and shares. It is cathartic. Some share at a very deep level. Others, not as much. Each one, though, shares. It is a human need to feel heard. Every single time, the client then moves on and is ready to focus on the complex substantive issues.
Additionally, litigants who reach agreement, rather than have the court enter orders resolving it for them, tend to be more satisfied with the overall results. A key to reaching agreement is starting the discussion. A skilled mediator can facilitate the discussion to a successful end. The healing process can then start sooner.
Strangely, unless ordered to go, many litigants do not attend mediation. As a result, they miss out on the opportunity to be heard earlier, have a chance at reaching more satisfying resolution, and ending the cost and damage attendant to litigation. The courts therefore now order attendance at mediation.
The success rate from mediation is quite high. It should not be undertaken too soon, such as before values have been determined for assets, or the marital estate completely identified, or expert reports on highly contested issues completed. To attend mediation prematurely risks not being able to settle the case ever, and not getting the other side to return at a later time when it would be more productive. Courts are aware of this, and so they order the mediation to be completed simply prior to the trial.