Role of the Law in Colorado Divorce & Mediation
	Summary. The role of Colorado law must be considered in a divorce mediation. The parties must be informed as to how a court might rule. However, because of uncertainty, such an opinion is only a factor in the negotiation process.

Colorado Divorce is Based on Law
In a litigated divorce which is decided through a court trial, the law is the primary standard which the judge is required to follow. In Colorado we have an extensive list of statutes and many Court of Appeals and Supreme Court cases which apply the law to different fact patterns. The general policy of our law is to protect the weak from the powerful. Many court orders attempt to equalize the financial positions of the parties.

During the negotiations which are a part of mediation, the balance of the bargaining power can shift because of how the law might apply to resolve the case. One of the parties can choose to take a firm stand on a particular issue because of his or her perception of how a court would decide the issue.

In other words, a question which routinely pops up is - Why should one of the parties take less than what a court would award?

Therefore, in a mediated divorce, the law is a major part of reality. It is essential that both parties understand how the law might apply to decide their case. So, in other words, if the case ended up in court, what is the likely outcome or range of outcomes?

The Uncertainty of the Application of Colorado Law
The law and its application to any particular fact pattern is never very certain.

The reasons for this uncertainty include:

• The application of the law is not always known (or yet decided) as to many fact patterns;
• Judges and attorneys interpret the law differently;
• The facts are often complex and confusing;
• Judges do not have the time to exhaustively study the facts of each case;
• Attorneys often do not do a good job of communicating facts to the judge;
• Judges sometimes have to rule without a good understanding of the facts; and
• Different judges rule differently, based on their own interpretations of the law and facts.
  

Although an experienced and analytical attorney can provide a valuable opinion of how a court is likely to rule, there is a lot of uncertainty. (That is one reason that we have so many trials.)

The Policy of Colorado Law in Divorce
When an attorney offers a legal opinion as to how a court might rule, the attorney should also indicate why the court is likely to rule as is expected.

Knowing "why" is as important as knowing "how" a ruling might go.

In general, the law is a public standard which is intended to regulate conduct in our local communities.

For example, the law is intended to accomplish objectives such as:

• Provide financial support for children. They have a limited right to subsistence;
• Prevent either spouse from ending up on public welfare (tax subsidy);
• Prevent the impoverishment of either spouse;
• Prevent catastrophic financial consequences following a divorce;
• Allow the family members to function independently; and
• Protect the weaker from the stronger.

The Role of Colorado Law in Divorce Mediation
Use the expected application of the law as a primary factor in the mediation process.

However, because of the uncertainty of the law and the legal process, don't get hung up on a particular projection of how the court might rule. But, use it as a guiding factor.

In addition to the role of the law in a mediation, the parties' sense of fairness and the objective of getting the case completed are at least as important.

And, in every mediation case, there is a limit as to what is the value and cost of losing a successful mediation. The "principle" of the issue may be important, but often not as important as getting the job done.