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Mediation: Five Things to Know Before You Negotiate

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Mediation: Five Things to Know Before You Negotiate

Mediation

If you’re dealing with a domestic relations or family law issue in Colorado, there is a high likelihood that you are required to participate in mediation.  Mediation is a confidential process where you enter into settlement negotiations with the other side, in an attempt to resolve your case.  Here are five things to know before you enter into mediation:

  1. The Format – chances are you will participate in “shuttle mediation.” This is where a mediator puts you and the opposing party in different rooms, and shuttles offers back and forth.  This is the most common format, and works well for parties with a higher degree of conflict.  For parties that have less conflict, you may be in the same room with the other party and the mediator, with mediation being more of a discussion than a back and forth bargaining process.  Be sure to know which format will better fit your case before you get to mediation.
  2. The First Offer – don’t freak out at the first offer. A lot of people negotiate by starting high (or low), assuming you will take the exact opposite approach.  Those people figure that by the time the negotiation is done, you’ll meet in the middle, and they’ll get what they would have settled for anyway.  But often times the first offer is so high or so low that it is perceived as offensive, eliciting a number of negative emotions from the party receiving the offer, and sometimes even causing parties to walk out of mediation.  While these emotions are certainly understandable, you need to be aware that this type of negotiation is a tactic, and not a personal dig at you from your ex-spouse or mother/father of your children.  Keep your cool and make a counteroffer accordingly.
  3. The Down Time – there is a lot of down time in mediation, assuming that you are participating in shuttle mediation. You may find yourself sitting in a conference room alone, or with your lawyer, for 45 minutes to an hour at a time.  A mediator may need to understand a party’s story before they can understand what kind of an offer that party is trying to make.  Or, you may just have a complex case that takes time to sort through with each party.  Either way, count on some down time.
  4. The Memorandum of Understanding – if you’re able to reach an agreement, either the mediator, or possibly one of the attorneys, will draft a Memorandum of Understanding, or MOU. This document will contain whatever agreements you were able to reach at mediation, and, once signed, will become binding on both parties.  This document isn’t likely to be lengthy, but will contain the main substantive points of your agreement.
  5. The Final Steps – although you may have signed a MOU, that is likely just the bare bones of your agreement. In most cases, additional language will need to be drafted and clarified.  As a result, you may draft a more complete document later on and sign that document; or, you may just stick with the MOU that you signed in mediation.  Either way, the final agreement you sign will need to be submitted to the Court for approval by a Judge before it becomes an Order of the Court.

Settling your case in mediation can keep you from protracted litigation, which is good for your pocket book and peace of mind.  Know what you’re getting into before you go to mediation, and you’ll feel that much more comfortable negotiating and compromising.  Contact me for a free consultation to get the facts on how best to negotiate your case.

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