Alternate Dispute Resolution: Options when parents cannot solve their own problems

Like many states, Colorado allows parties to submit their disputes to neutral third parties other than judges.  When those disputes arise between parents, the types of people who may become involved in the dispute include mediators, arbitrators, parenting coordinators, or decision-makers.

Generally speaking, mediators and parenting coordinators are only allowed to assist the parties in reaching an agreement and cannot impose a decision upon objecting parents.  The role of a mediator or parenting coordinator is an important one in facilitating communication between parties and helping parents to resolve disputes.  Increasingly, courts are ordering parties to participate in mediation prior to a hearing before the court.  By forcing parties to mediate, courts hope to reduce the cost of litigation and reduce the strain on judicial resources.  Mediation can also lead to more creative solutions that better fit an individual case because the parties are usually in a better position than a judge is to know what will work for their family.  Quite simply, the parties have access to much more information than the legal system ever could about their children.

Like a mediator, a parenting coordinator helps parties resolve their disputes regarding parenting issues without the involvement of a court.  Parenting coordinators can often respond faster than the judicial system and are better equipped to help parties resolve logistical issues or small issues like changes to a parenting plan to accommodate someone’s work schedule.  In Colorado, the court can order the parties to use a parenting coordinator.  One key difference between mediators and parenting coordinators is that mediators are generally appointed or selected to assist with one, discreet problem.  Parenting coordinators are usually appointed for a specific period of time not longer than two years.  C.R.S. section 14-10-128.1(5).  As set forth in the statute, the parenting coordinator’s role during that time is to assist the parties in implementing the parenting plan, develop communication guidelines, and identify and minimize areas of conflict.

As noted above, neither a mediator nor a parenting coordinator can order the parties to do anything however, and their role is only in making recommendations to the parties and facilitating the parties’ negotiations and communications.

When mediation fails, the parties are normally left with the option of going to court.  In addition to the cost associated with a hearing, judicial resources are so stretched in family courts right now that many courtrooms are scheduling even half-day hearings almost a year from the date of filing.  Two options available to them include using an arbitrator or a decision-maker.  Because both of those options effectively allow someone other than the court to make binding decisions regarding parenting plans, they require the parties’ consent before appointment.

One of the attorneys in my office, Misty Ewegen, accepts appointments as a decision-maker.  Arbitration and decision-making are essentially parallel options to mediation and parenting coordination.  Arbitrators are usually hired to address a single, discreet conflict, while decision-makers are appointed for a period of time not to exceed two years.  C.R.S. section 14-10-128.3(5).  Decision-makers are generally on-hand to address issues as they arise.  The specific process a decision-maker uses may vary, but they generally decide issues after getting information from both parties.  Some decision-makers utilize a process that looks much like an arbitration.  Others simply ask the parties to submit whatever information they want the arbitrator to have when making the decision.  Some of the procedural logistics vary based on the nature of the dispute as well; the more complicated the issue, the more process a decision-maker is likely to use.

On April 26, 2012 the Colorado court of appeals decided a case clarifying the role that an arbitrator’s decision plays in the judicial process.  The Colorado statute allowing for the appointment of an arbitrator in domestic relations cases provides that the arbitrator’s decision or “award” shall be effective immediately upon entry.  C.R.S. section 14-10-128.5(1).  Similarly, the statute regarding decision-makers provides that all decisions shall be effective upon issuance.  C.R.S. section 14-10-123.5(3).

In Leverett, however, the court of appeals clarified that the decision being “in effect” does not make the decision an order of the court for purposes of contempt.  The court noted that, because the statute does not include specific information regarding enforcement, it must be read in conformity with the Uniform Arbitration Act, which allows a party to move the district court for an order confirming the award.  Functionally, this is similar to the provisions providing that separation agreements are enforceable between the parties as contracts before the court adopts them as orders.  Practically, this means that parties hoping to enforce the decision must move the court to confirm the decision before filing for contempt.

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