Though every divorce, legal separation, annulment, and allocation of parental responsibilities must eventually go through a Court, there are several forums in which your case may be resolved.
Court. A legal action must be filed to obtain a divorce or legal separation. If the Court resolves your case, a judge will decide the issues presented and enter orders based on evidence and arguments. Many parties reach an agreement on some or all issues prior to a hearing, and a judge, therefore, would not decide such issues. Spouses can reach agreements between themselves or by using one of the dispute resolution models referenced below.
Settlement Conference. A Settlement Conference is a meeting between the parties that may also include one or both attorneys involved. Typically, settlement conferences do not include a mediator (see below) but may include a financial or other professional, if beneficial. Settlement conferences are a chance for the parties to work toward agreements and determine any disputed areas without the added cost of a mediator or the uncertainty of the Court. Settlement conferences can be held more than once during the divorce/legal separation process, as needed, and can be used to negotiate interim or final orders issues.
Mediation. Mediation is a dispute resolution process where a trained neutral facilitator helps spouses and parents negotiate a mutually acceptable resolution that meets as many of both of their needs as possible. The mediator provides general information, helps identify issues to be resolved, and helps parties evaluate and reach final resolutions. A mediator cannot advocate for either party and does not have the authority to decide any remaining disputed issues (i.e., a mediator may not resolve a conflict without both parties’ agreement). Parties may have their attorneys present during any mediation, or they may participate in the process without attorneys.
Mediation is a confidential process and the information discussed during mediation is not disclosed, even to the Court. Divorcing spouses in El Paso County must complete at least one good faith mediation session before they may schedule a final orders hearing in front of a Court. It is often helpful to schedule mediation early in your case before positions become polarized. Even if an agreement cannot be reached regarding all issues, resolving even some of the issues will help move your case forward and minimize cost and stress. In El Paso County, it is common for spouses to be in separate rooms and the mediator to shuttle back and forth. This mediation style is not a requirement, however.
There are many mediators in our community and their experience, knowledge, and training vary greatly. It is critical that you and your spouse select a mediator that has the expertise necessary to handle your case. If you choose Dailey Law, P.C. to represent you, we can use our knowledge and experience to assist you in determining which mediator is appropriate and will be the most helpful to resolve your case.
Arbitration. Arbitration is a process where a neutral private party (known as an Arbiter) is selected by the parties and counsel to decide any issues that the parties submit for resolution. In essence, the Arbiter is a “private judge.” The selection and authority of the Arbiter, the issues to be resolved, and the process to be followed are defined by a written agreement entered into at the beginning of the process.
In El Paso County, the process is typically less formal than a Court proceeding and is often combined with mediation (known as mediation-arbitration, or “med/arb” for short). In mediation-arbitration, the neutral facilitator tries to help the spouses resolve all issues via mediation. If they are unsuccessful, the mediator becomes an arbiter and makes a final decision on unresolved issues.
This process of arbitration, or mediation-arbitration, offers a number of benefits. Like mediation, it is a private process and can be scheduled on a date and time convenient for all parties. Spouses, usually with the help of their attorneys, can select the person who will serve as Arbiter and therefore will know for sure who will decide the unresolved issues in their case. Usually, the Arbiter is an attorney or retired judge who has significant experience with family law cases and the type of issues in the specific case at hand. Parties have an opportunity to talk directly to the Arbiter, rather than through formal testimony required in Court proceedings.
Arbitration also carries some risks. Specifically, unlike a final order of a Court, which can be appealed (see below) or modified in certain cases, an arbiter’s award is final and is subject to extremely limited review.
Appeals. Judges are human beings, and sometimes they make errors – either legal or factual – when they decide cases. Moreover, every case is unique, and some cases present legal questions or factual scenarios that no court in Colorado (or, perhaps, the country) has yet addressed. The appeals process addresses both situations.
If the trial Court makes an error, the issues may be appealed in the Colorado Court of Appeals. In most cases decided by Colorado trial courts, parties have an appeal “as of right.” That means that, if the Court (as opposed to an Arbiter) has decided a contested issue, you likely have a right to file an appeal with the Court of Appeals.
If you receive an adverse ruling in the Court of Appeals (i.e., if you lose your appeal), you may apply to the Colorado Supreme Court to re-examine the Court of Appeals’ ruling. Unlike the Court of Appeals, however, the Supreme Court takes most of its cases on a discretionary basis, meaning that the Supreme court can decide not to hear a further appeal. The Supreme Court generally only decides issues of “first impression” (i.e., cases with issues that have not been resolved before), issues of great public importance, or cases where a lower court misinterpreted the law.
The appellate process can be difficult, time-consuming, and confusing. Both parties submit lengthy (30+ page) briefs that explore the law and the trial court record. Parties or their attorneys sometimes also go to the courthouse in Denver and argue their legal position to the judges on the Court. An appellate court will focus on a different aspect of the case than did the trail court: while the trial court is focused on understanding your case, finding facts, and applying the law to those facts, the appellate courts are most concerned with the interpretation and understanding of the law.
The attorneys at Dailey Law, P.C. can walk you through the appellate process and, if you choose, represent you in this process. If you wish to appeal a final order in your case, or if you have received a Notice of Appeal or any other appellate document(s), you should contact us at your earliest convenience. The appellate process in Colorado is governed by different rules than at the trial court, and there are certain strict deadlines that, if you miss them, may make it difficult or impossible to pursue any further action.