Selecting a Mediator and Memorandums of Understanding

Parties always have the right to choose their mediator. Mediators have varied professional and educational backgrounds, and mediation is not a licensed profession in Colorado. Though most mediators attend a 40-hour mediation training, it is not a state requirement. Care should be taken to ensure that a selected mediator has mediation training and experience. All Office of Dispute Resolution mediators contracted by the state have attended a 40-hour mediation training and have substantial experience in mediation.

There are various characteristics to consider when choosing a mediator. Mediators ideally should understand the law and the court system, otherwise mediated agreements may not be legally sufficient. However, some mediators are mental health professionals and are chosen when mental health is of particular importance in a matter. Mediators must also be able to focus the parties on problem resolution rather than excessive venting, so the mediator has to take charge of the process while allowing maximum party participation.

A mediator should be a good observer and active listener, and should actively seek routes for agreement. Mediators have different styles. Some are more involved and offer proposed options, while others are less active, reflecting what the parties say and asking questions that lead the parties to create their own potential solutions. Many mediators are mental health professionals or attorneys, though they can come from any background.

When parties reach agreement in mediation, the mediator drafts a Memorandum of Understanding (MOU), which an attorney can later incorporate into a more complete separation agreement or parenting plan, if necessary. If the parties request such, a mediated verbal agreement “shall be reduced to writing and approved by the parties and their attorneys, if any.” C.R.S. § 13-22-308. If the MOU was reached without the assistance of attorneys, attorneys can review the agreement before the parties sign. A signed MOU is enforceable as a contract between the parties, and if entered as a court order is enforceable by the court.

Attorneys have a role in the MOU as well. When parties are represented, attorneys can assist in ensuring that an MOU is legally sufficient. However, when one or both parties are pro se, a mediator who has an understanding of the relevant law may be best for the parties. An agreement that the parties reach without the assistance of counsel may not be legally sufficient. For example, child support is the right of the child. If the parties agree to waive child support without articulating a valid reason, a court may not approve the agreement, as it may not be construed to be in the best interests of the children.

Divorce and family law matters are difficult to navigate alone and the court process is usually more complex than expected. In Colorado Springs, we can guide you through the process by handling document preparation and filing, negotiation, mediation, and court proceedings from start to finish. This allows you to focus on moving forward to a better future. Remember that change often creates new opportunity and a better future. Janko Family Law Solutions can help ensure that your best interests are protected. Contact us at 719-344-5523 or complete our online form to set up a free thirty-minute informational consultation.