Mediation can be an excellent solution for some families, but it is often an ineffective problem-solving technique.
On this episode of Children First Family Law, Krista explains a court’s obligation to attempt Alternative Dispute Resolution (ADR) before a contested hearing and the challenges that could arise during mediation. Mediation is not always the most effective resolution tool, and Krista explains why it often fails. She shares why she created Amicable Uncontested Family Law Solutions, what you can expect from that process, and why Krista’s method helps parents learn to co-parent more effectively. Krista outlines the challenges mediation can present, with attorneys often making the situation more difficult than it needs to be. She shares the steps clients and attorneys can take before entering mediation, what differentiates collaborative law from mediation, and her passion for mitigating the damage done to families by helping them recognize when they need help.
Children’s well-being is at the heart of Krista’s law practice, and she wants attorneys and families to know what they can do to create better co-parenting situations that benefit all involved parties.
In this episode, you will hear:
- Alternative Dispute Resolution (ADR) and a court’s requirement to do this type of mediation before a contested hearing
- The issues a prepared mediator will address during the mediation session
- Mediation’s lack of effectiveness and some reasons it often fails
- Krista’s love of creating effective solutions with settlement conferences as opposed to traditional mediation
- Amicable Uncontested Family Law Solutions and what Krista’s clients can expect to gain from this product offering
- The involvement of attorneys making a divorce situation far more difficult
- Using the Children First Family Law podcast as a resource for parents and attorneys
- The steps a client should take before entering mediation and the information attorneys need to create a good outcome
- Collaborative Law definition and who it best suits
- Krista’s preference to help both parents and help them learn to co-parent better
- Mitigating damage in families by helping them recognize when they need help
Resources from this Episode
www.childrenfirstfamilylaw.com
All states have different laws; be sure you are checking out your state laws specifically surrounding divorce. Krista is a licensed attorney in Colorado and Wyoming but is not providing through this podcast legal advice. Please be sure to seek independent legal counsel in your area for your specific situation.
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Amicable Uncontested Divorce Services Podcast Transcript
Krista Nash 00:00
Courts require you to go do that kind of mediation prior to going to a contested hearing, especially the permanent orders hearing or a big motion to modify parenting or decision making, for example. And that kind of mediation. And there’s a bunch of different mediators out there who are willing to basically take your case and they come into it knowing very little about it, maybe if your attorneys have done a good job, or if your attorney has done a good job, and your opposing parents have done a good job with their counsel, we will end up with a mediator who is at least a little bit prepared.
Intro/Outro 00:36
Welcome to the Children First Family Law podcast. Our host Krista Nash is an attorney, mediator, parenting coordinator and child advocate with a heart to facilitate conversations about how to help children flourish amidst the broken area of family law. As a child advocate in demand for her expertise throughout Colorado and as a speaker on these issues at a national level, Christa is passionate about facilitating and creatively finding solutions to approach family law matters in a way that truly focuses on the best interests of kids. Please remember, this podcast is provided to you for information purposes only. No one on this podcast is representing you or giving you legal advice as always. Please enjoy this episode and be sure to like, subscribe and share the podcast with others you think would benefit from this content.
Krista Nash 01:23
Hi everyone. This is Krista. Thanks for joining me for today’s episode of the podcast. This is one of the first few of my podcast episodes, and the intent is for me to share the various practice areas in which I work. So today we’re going to be talking about the practice area that involves mediation, and more specifically, a product that I offer that a lot of places do not offer, which is called Amicable, Uncontested Divorce. So we will talk generally today about mediation, and what to think about mediation, how it differs from what my product offering is, and why you might want to consider this product offering for you and your family initially.
As a start, I want to share with you all that most states, and including Colorado, require some level of what we call mediation or Alternative Dispute Resolution. That’s ADR often the acronym is used to talk about all different types, which includes things like mediation, arbitration and a variety of other types of alternative dispute resolution, and courts require you to go do that kind of mediation prior to going to a contested hearing, especially the permanent orders hearing or a big motion to modify parenting or decision making, for example, and that kind of mediation. And there’s a bunch of different mediators out there who are willing to basically take your case and they come into it knowing very little about it, maybe if your attorneys have done a good job, or if your attorney has done a good job, and your opposing parents have done a good job with their counsel, we will end up with a mediator who is at least A little bit prepared that mediator should have received settlement statements that are confidential, that cannot be brought into court later, that are giving a sense to the mediator of what it is you’re looking for. What’s really important to you, what are the important aspects of the case that this mediator needs to understand prior to the mediation session, the mediation session is usually set for just a few hours, sometimes a day. Rarely more than that, take a very, very complicated case to take longer than a day, although it can happen from time to time, and the mediator really comes in and brings fresh eyes a lot of times these mediators, they’re usually attorneys, they’re sometimes judges who have retired and are bringing that kind of insight to your case, but I will tell you that as I started doing this work, I have found that it’s not as effective as I hoped it would be. I think the problem really is that attorneys don’t usually prepare very well for mediation, and that’s a really just sad situation for mediators, because you go in expecting, I think, when you start this work, that you will have a little bit more information than most attorneys bother to give you, or most parties basically decide to give you. And because of that, you go in almost cold. Now, sometimes you will have the statement and a few documents or a report, or some of the things that have been written about the case, foreign financial statements and things like that. And you will be able to take a look at those and have a little bit of insight, but that’s only if you’re really fortunate most of the time, and mediators bemoan this all the time, that attorneys just don’t do the work, parties don’t come in having done the work, and so your chances of really getting a settlement done are pretty low. It becomes very frustrating when you’re somebody like me, professionally who really thrives on wanting to help solve this for people and work with people hand in hand to get solutions. And I thought when I did my mediation training, I had very high hopes that I would be able to really sit in that seat and do that work well. And sometimes I really am able to, and in my own cases, when I take them to mediators, I have. Some people who you know, have a pretty high hit rate, they are able to do a pretty good job of getting things settled. But a lot of times, and more often than I would like, it’s just not possible because clients are not clients, and parents and individuals going through this rough process are not prepared well. They haven’t really thought about what they need or what they want or what their expectations are. A lot of times, if there’s attorneys, some of them have not done the work of getting a client ready for this kind of meeting, and the time just really ticks by very, very quickly, oftentimes without a settlement.
Even worse, we end up with attorneys who are really just checking the box, because financially, you know, going to mediation is a good day for them, and they make a lot of money that day, and they make even more if they go to court and litigate a case. And so while I hate to think that about most attorneys, I know people really, genuinely, often, some of them, at least, are trying to get your case settled. There still is a profit motive that disincents settlement and incense moving forward, and it can just become very hard for that mediator to get it done. And so while I thought I would love mediation, just your typical mediation, of launching into a case and bringing your problem solving wand to bear on the case, and everybody walking away with a wonderful agreement, I have found that in comparison to my other work, which is working as a Child Legal Representative (CLR), best interest attorney in that case, I have so much information about the case and the children. I have built relationships with the parents. Often I know their attorneys, and I really am sitting in a privileged seat where I can go in and run settlement conferences and I can actually do some real serious work to get the case done, and I have found that to be so much more effective than the typical mediation approach, given some of these frustrations with mediation and typical alternative dispute resolution offerings, I thought there must be a way that we can do this better.
How do we bring this kind of problem solving to families in a way that can help kids and parents flourish? Therefore, I have created a product in my wheelhouse, basically that I’m offering to people that I call Amicable, Uncontested Family Law Solutions that can be amicable, uncontested divorce amicable, uncontested allocation of parental responsibilities. Amicable, uncontested post decree modifications of parenting time, etc, amicable solutions for families, essentially that we can do in an uncontested way. Essentially, it’s bringing to bear all of my and my team’s mediation, family law, financial child advocacy, experience and also just our negotiation power to be able to help you and your co parent, be able to get through this in a way that is just more effective, less painful, less expensive, less contentious, and gets you through from beginning to end in a way that really does help you flourish and help your kids flourish.
So what does this look like? I’ll explain it a little bit, because it’s quite different from some of the offerings that you might have heard of or that you might be finding online as you sort of shop around for what your what your options are, what we do is you are not represented by an attorney. We have attorneys, and I am an attorney, but we do not go in and enter an appearance on your case. Instead, we bring our legal knowledge to your situation to be able to help both of you together understand the dynamics of what you can expect in the case and what the requirements are, and consider options to get that settled in a way that gets you through it as quickly as possible. Now, sometimes we hit some bumps, and we need some help. For example, we might need a financial expert to come in and appraise a home. If you can’t agree on the home’s value, and Zillow or other options are not doing it for you, then we might need an actual appraisal. I have resources of people that we can go appoint to do that work, and we can then review that. We can hit pause on our settlement discussions or the process generally, until we have that information. We then might need help on what somebody’s income should be. Maybe we can get through that together in a mediation session with me, helping both of you, or my team, helping both of you, if we can’t, then we might need some extra help. We can go get that, and we don’t have to make it extremely adversarial, but we can do it in a way that satisfies both parents, both partners, that they’re being treated fairly. I share with you the calculators for child support, for spousal maintenance or alimony. I talk with you about my extensive child advocacy experience and what I’ve seen in the hundreds and hundreds of cases I’ve done, and what you should expect if we need therapy for a child to have a better relationship with one or both parents, or we need co-parent coaching, or we need in-home services.
There are so many different things. Things that I know are out there that I can bring to bear for your case, and I can do that with both of you together. So the beauty is that you are trying to do this in as peaceful a way as possible, and you’re keeping your costs down, and it’s more of an open book. It’s not one parent out with his or her attorney in a room on their own, trying to navigate and strategize, and on the other side, the opposite parent and the opposite you know, you become opposing parties, basically, and I don’t consider that a way to make people flourish. There is a way to do this where you never have to say that your co parent, or the person you had a life with for so long is your opposing party or opposing parents. That is just a really broken way to look at it.
Now this won’t work for everybody. Obviously, some of you are in such a toxic place or so distrusting of your partner or co-parent that this is not ever going to get off go, and I can navigate knowing when I see that as a problem. So if you want to do a consultation. You would need to do that with both of you together. We would have that conversation. And if there’s a lot of red flags, or enough red flags that I know it won’t work, which I have a pretty good nose for, I would tell you, and we wouldn’t proceed. But for many, many parents, this really is and for even people without kids, even though my firm is Children First Family Law. I’m all for everybody flourishing in this broken area. So you can certainly contact us, even if you don’t have children, but you would like a peaceful approach to this. We have a lot of people who do that. I really believe that there’s an amicable path forward, and you should try that before you try something that is more litigious, and unfortunately, 90 something percent of probably more than that, of firms you’re going to go to and approaches you will be kind of sucked into, are going to be litigious and they’re going to be more adversarial than you want them to be. I find myself constantly saying to attorneys, why do we need to do that? We do not need to be driven by court. Let’s be driven by peacemaking. Let’s be driven in an amicable, uncontested way, because that really is what our clients are asking for. And I can’t tell you the number of attorneys who then are on the opposite side of a case of mine who make this way harder, even very amicable people, even people who are mediators themselves, frankly, who make this way more difficult than it needs to be. And so I would ask that you consider it, give it a shot. You will be able to take a look at more information on my website, if you’re interested, and really set up a call where we could do this together and take a look at how we might be able to help do that. We would help guide you through all of the different financial statements that need to be filed. We can’t legally advise either party, but we can certainly explain the dynamics of how things work and how in Colorado, the law works and what to expect. And we bring a vast amount of information to just help you get through it, to file the case yourself, to file the other documents yourself, and to get at the end in a very peaceful way, a parenting plan, a Separation Agreement, and all the associated documents that are necessary to take to court to finish your case. We can do the support orders, the decrees, all the things that need to happen. We can do for you, and we can do that together as a team.
Worst case, if you have to walk away, I would not represent either of you, but I find this has been really a powerful thing to help really set people on the path of co parenting. I also love that I get a chance to share with people, point them to my podcast and particular episodes where I know there are other people who can explain things to them better. So for example, rather than me wasting hours of time explaining to you and your co-parent how sobriety testing works. For example, I can send you to a direct podcast that I’ve done on this with experts in the area, and send you the four or five podcasts I’ve done on that, and you can then go get those without paying me anything, and can really understand and come back with ideas of how we can approach this in your own case. So you can see how that both brings to bear all of the information I can provide without you having to pay for that, but also allows you to make solutions and hit the ground running in terms of problem solving for your situation. So even when you have complexities like that, if people are willing to work together, I can help you in that way.
Now, I will chat for a little bit about typical mediation services as well, because those are a little bit different. But I do and this podcast, I want you to at least understand what those are, and I do from time to time, still do this work. So if you’re interested in a typical mediation process, you can certainly reach out as well, although it’s not something that I lead with, because, again, I don’t find it to be as problem solving. And especially it’s not problem solving if you haven’t done the work ahead of time to really understand your case, have your attorney understand your case. If you have an attorney and understand what your position is going to be, don’t even really bother going to mediation. Frankly, I mean, you have to. In Colorado, you have to if you’re going to go to a permanent orders hearing, but it’s really not the most effective use of time if you do not do this in a manner where you’ve done the work ahead of time. So I encourage you to really think about it. You should be encouraging your attorney, if you’re going to mediation, to provide to you weeks ahead of time a distribution worksheet, or some firms called a marital balance sheet that takes all of the financial information and puts it on a spreadsheet, including things like, what is the separate property components? When were the statement dates that we looked at? What is the value of all of these accounts that that often is taken off your sworn financial statement, and the related disclosures that are provided when you file your sworn financial statement? But if mediation is far after temporally, if it is, you know, a month later, two months later, three months later, sometimes it can be a long time after you’ve filed your sworn financial statement, you also should expect that it is best to have your values updated, because obviously retirement accounts and various other bank accounts, credit cards, they all fluctuate quite a bit. So try to get before mediation. You should be and if you have an attorney, your attorney should be doing this. That should be updated. That does not necessarily mean you need to go to the expense of filing an amended sworn financial statement and doing a huge heap of new disclosures and having that attorney charge you 1000s of dollars for that, but there certainly should be an update that the attorneys or the partners are at least having access to, to look at and know what the current value of these things are.
When you go into mediation, also your attorney, or you, if you don’t have an attorney, should be providing the mediator with a confidential settlement statement. Or you don’t even have to make it confidential if you don’t want to, sometimes it’s appropriate, and you might just prefer to be an open book and send that settlement statement over to the other party and his or her attorney. And you can say, this is what is the most important thing to me. Now, often I would say being in the mediator seat, it’s usually better to not share that with the other side and let the mediator navigate the best way of using that information. But maybe you say, you know, I want you to know confidentially that I’m moving out of state. My co-parent doesn’t know this yet, and it’s very important that we navigate this. And I don’t know how to tell this person. Can we bring this up at mediation? I mean, now that would be a really surprising thing to bring up at mediation. It might derail things. It might be that you actually ask the mediator ahead of time. Hey, I’m planning on moving out of state, and I haven’t told my co parent that I would like to potentially let the person know prior. And maybe let’s push mediation out a little bit so that other parent can process that a little bit and not be blindsided. So that would be the kind of nuance you want to do.
Let me give you a simpler example, your settlement statement should say, you know, I really want to keep the house, or I know I don’t want to keep the house, and so I want you to be able, let’s say both parents are fighting about who will keep the house. That can be something that the mediator could really have as a tool for negotiation. The mediator could say, You know what, if you kept the house, sir or ma’am, and that might feel like a big win to the other parent. So giving the mediator that kind of tool is super helpful. Or, for example, on the child side, maybe you’ve been a parent who’s been very fixated on having very little parenting time for the other parent, but you’re coming around and understand that maybe the other parent needs more parenting time. You could tell the mediator ahead of time in this confidential settlement statement that you really do want the other parent to have time, and that you’re willing to agree to that, perhaps in a couple months, or when the kid starts kindergarten or in a year, or when the person shows sobriety, or whatever the situation is. But giving some parameters to the mediator to work with can be very helpful.
Another example would be for alimony, for special maintenance. Maybe you’re willing to say, I am actually willing to do a buyout of the maintenance. I don’t actually need it. Let’s say you’ve been married, you know, 10 years, and just to throw a number out there, and the statutory guidelines say that it should be for, I’m just pulling this out of my hat, but four years and X number of months, and you’re willing actually to do a buyout using some cash accounts or some other options, and making that value be a little bit lower with present day value. And that’s something you want the mediator to know ahead of time. These are things like you might have somebody who’s paying spousal maintenance say, what I really want you to know, mediator is that I don’t want to pay special maintenance. It’s gonna make me so angry every month, and I don’t wanna do that. What I really want from you is to try to figure out how to get myself a buyout so that I’m giving a chunk of money upfront, and that’s preferable to me. These are the kinds of things that you can understand.
There’s so many of these. I could rattle off 100 different things that we could talk about, and they’re all really important to get mediation done. You can see how, if the mediator doesn’t have that kind of information, how hard it would be to settle a case in just a few hours or one day. Other things obviously involving your children. Are you in agreement about school? Are you in agreement about what’s going to happen to them? You know, are they going to daycare? Are they going on both parents are working, what happens with the kids who’s providing health insurance there, who or what are the decision making elements of this? Are you fighting about medical care, extracurricular activities? Is there a dispute about vaccines? There are just hundreds and hundreds of things that could be a problem. So this is where you can see that having the kind of preparation for your mediator is super, super important for it to be effective. And you can see why this offering that I have, the Amicable, Uncontested Family Law Solutions, can be so powerful because a lot of these things come up over the course of the case, and having sort of a mediator in your pocket who understands you and your family, understands your children. I mean, frankly, could even talk to your children, if that’s something you both agreed about, or talk to your therapist, or your kids talk to the schools.
These are all pieces that this unique navigation of being in the seat of being a problem solver for you and your family really can bring to help solutions-based family law, frankly, so there’s a lot more we could say about this, but for today, I will sign off. I hope this gives you a sense of this area of practice, both for me and for the world of mediation, and what that looks like. There are a number of other things that you can consider. Later in the podcast, I will have on Terry Harrington, who talks about Collaborative Law, which is a very different beast. If you search for Collaborative Law, a lot of people think that Collaborative Law is what they’re looking for, but Collaborative Law does not mean the same thing as just amicable, uncontested divorce. Collaborative Law is a term of art internationally, including in Colorado and across the nation. Colorado is not a big user of Collaborative Law for a variety of reasons, but there’s some states that do have a far heavier presence of this thing called Collaborative Law, and it really is something that’s largely used in Canada and in some other countries. Collaborative Law, I’ll just briefly explain and then you can listen to Terry Harrington’s podcast later, because she’ll talk more articulately about what a Collaborative Law is. But essentially, in Collaborative Law, you’re bringing two attorneys on one for each parent, and those attorneys may not represent you in the future if everything fails, and they often bring on additional experts, financial experts, sometimes child experts, a variety of people who can help with your case. It can be very helpful for the right case. The problem that you might think about with it, though, is that it can get very expensive because you’re dealing with two attorneys, two staffs and a variety of experts. And while they try to not make it adversarial, it isn’t quite as amicable as what I’m talking about with one person guiding you in that seat. However, it is the kind of approach that gets you dedicated legal advice in your corner, as opposed to just a neutral helping you in the kind of process that I have explained.
Now I am a collaborative attorney, so I’m trained. That means I’m trained in Collaborative Law, and was actually trained by Terry Harrington in her wonderful training programs. And so I can do Collaborative Law, but I find, for the people who come to me, that I like this other option better, and that’s why I do it. I prefer to be in the seat where I can help both people and really bring solutions to bear, where I can talk to both parents and have direct contact and direct problem solving. I also find that doing it the way I’m offering helps people learn to be better co parents, because a lot of my work is in parenting coordination and helping people. Parenting coordination at its core is and you can listen to my other podcast on this. But parenting coordination is an appointment that happens usually later in the case, and will always later in the case where the court thinks that there is the need for a helper to help these parents get along and learn to be better co parents. And usually, a lot of times, it’s accompanied by being the decision maker as well, which is called a PCDM so I have a whole intro podcast on that you can go listen to that. I’ve got maybe one or two cases, but I don’t take them this way anymore, where I am just the decision maker and not the full PCDM. And I don’t take those any longer, because I don’t want to just make decisions for people. I want to help people learn to flourish on their own and navigate how to be good co-parents and get the kind of resources that they need to become great co-parents to rebuild that trust.
Some of my podcast guests will talk about that incremental trust building and how important that is, and I want to help facilitate that for people. I don’t want to just be in a decision making chair. I want to help people learn to be good co-parents. That’s the only reason I take on that PCDM work and in my Amicable Uncontested Family Law Solutions, I can do the same thing so we can work together. I can, let’s say we’re all on a Zoom together. I can help parents learn through the way that I navigate the community. Communication between them where things go off the rails. I can help them learn how to approach their tone better and things like that. I can even can even help them navigate, for example, you know, text communication or communication on some of the parenting apps, and come in later and say,
Guys, I really think we could do this better if we approach it this way, and so it really brings all of this solution to bear for a family going through this, and my hope is that it avoids the truly chaotic and toxic cases on which I find myself years later. And a great body of my work involves joining families as the best interest attorney for children and trying to bring order to the chaos and peacemaking to the warfare. And if I could just get ahead of this by working with people earlier, I think we could spare families a lot of pain. I use the analogy of oncology a lot, where if there’s certain warning signs in cases that you know, and just like with cancer, there’s certain genetics and predisposition and certain pains and things that if you go to the doctor, they’re going to say, Yeah, I’m worried if we don’t treat this, that it’s going to turn into something bad. I can see that as well in my Family Law cases. And unfortunately, many families don’t bring people on to help, you know, right the ship, or make it more peaceful until far later in the process, and by that point, we’ve done so much damage. Or, for the oncology analogy, the cancer so far spread that we have ruined relationships with children. We’ve made it virtually impossible for a co-parent, effective co-parenting to happen. And so my whole goal in the way I approach this offering is to bring solutions earlier, to avoid the need for the Child Legal Representatives (CLR) in the future, and avoid the need for adversarial approaches so that everybody can move on with life in a way that is truly healing and allows you to continue, especially if you have children together, to be co parents for the rest of your kids lives, and to be able to be in the same room together, and to be able to forgive and move on, or get at least to a place of peace where you can co parent.
So I appreciate you all listening, and I hope you’ll reach out if you think this is an area that we could be have helped you in if you’re in a different state, I hope that you will consider this type of offering in your own practice, because I hope that this will spread in a way that is effective for more families, nationally and internationally. Certainly hope for the best for you as you go through this process, and I hope you’ll continue to turn into the podcast, because I have lots of different things I’ll bring to you on the podcast that I hope will just bring insight and help you make really good, solid decisions. If you are a parent going through this messy area, or if you’re a Family aw attorney or practitioner in another area of Family Law, that it’ll challenge you and give you some things to think about that can help in your line to the extent it’s up to you to be promoting peace in these families and wholeness for individuals. So I wish you well until next time. Bye bye.
Intro/Outro 28:10
Krista is licensed in Colorado and Wyoming. So if you are in those states and seek legal services, please feel free to reach out via Children First Family law.com that is our website where everyone can find additional resources to help navigate family law as always, be sure to like, subscribe and share the podcast With others you think would benefit from this content.