Twas a snowy white day before Christmas, and the Petitioner was decorating the tree in front of the courthouse with all of the family’s Christmas tree ornaments.  Her attorney was there to help, but only because there was a court order.  Precisely 100 yards away, stood the Respondent with his attorney.  They were steaming mad, and for several feet around them the snow had melted away revealing the grass underneath.

How had all this come to pass?  The couple had divorced a year ago.  They did the 50:50 thing, but when it came to the Christmas tree ornaments, she said he was taking all the good ones, including several that were from her mother.  She had filed for contempt and said she was not getting a fair shake.  At the first contempt trial the judge rolled her eyes, and the lawyers dismissed the case saying they could work it out.

It did not work out, so the Petitioner filed for contempt again.  In the interim, things had turned violent, and a few of the ornaments were crushed underfoot.  It was the permanent protective order that was keeping the parties 100 yards apart out there in the snow.

The judge wrote a long and detailed order after the second contempt trial, and imposed the remedy that caused the Petitioner to decorate the courthouse tree.  When she had finished decorating she was ordered to retreat 100 yards, taking just one ornament with her. Then the Respondent was allowed to approach and take one ornament.  He then retreated 100 yards back to where his attorney was.  She then approached and took one ornament, and the process alternated until there had been an even division.  Needless to say, the attorney fees for this vastly exceeded the dollar value of the ornaments, which was the point the judge was making by having the lawyers there.  The judge was hopping mad at everyone for taking up her courtroom time with this.

Each attorney was quietly thinking to herself that in future I am going to add an arbitration provision to my separation agreements, so that disagreements over the small stuff can be taken care of privately without all this embarrassment.  Sometimes people really do need to be told.

Happy Holidays everyone.

If they were to afford to go their separate ways, they would need the security deposit back from their landlord.  The boyfriend was going to keep the dog that had peed on the rug, and the about to be ex-girlfriend was to keep the cat that had scratched a hole in the carpet and shredded the drapes.  The whole place just smelled of pet odor.  They conceded that there was about $700 of damage.

The landlord had taken a large security deposit when the couple had signed the lease. In one part of the lease the whole sum was described as a deposit.  On a different page it was said to include a $700 non-refundable pet fee, the balance being the deposit.  When the couple decided to split up, and not to renew the lease, the landlord returned only half of the deposit, keeping some to cover the pet damage, and $700 as the non-refundable pet fee.

The landlord only itemized $700 worth of repairs when he justified his withholding from the security deposit, but now they were all in small claims court, and he was counterclaiming for double that amount of damages.

Neither side would budge; they had been in animated conversation for what seemed like an eternity in mediation. The about to be ex-boyfriend and ex-girlfriend were getting frazzled, and each wanted this done yesterday.  The timing was right, and I took them aside and asked whether they could go half way in settlement of their claim against the landlord.  I could see that they wanted out, and they agreed instantly.

The landlord who had drafted the all too ambiguous lease was tougher to shift. I said that his counterclaim might look a bit inflated, and more like a second bite at the apple, given his initially low itemization of the damage.  He did not have a quick answer for that.   We talked over the drafting of his lease, which was all the product of his word processing.  I did not blurt out that the court might construe against the drafter, but we did discuss how highly he rated his chances.

Are you feeling lucky I said, it is legalized gambling in court, and you could do a whole lot worse than taking their offer.  It turned out that he was not feeling that lucky, and he settled their claim and dropped his counterclaim.

This was the parties’ agreement, and the court accepted it.  Perhaps the couple left money on the table and could have done better in trial.  But then again, the landlord had lots of receipts and estimates, and might have done well with his counter claim. Had either side had an attorney, it could all have come out some other way.

So many people come to mediation wanting justice. They want something fair, and they ask me what I think is fair.  I’m not sure that pitching 50:50 was fair in this case, except that an even split always seems fair. What was important was that I thought it might work for these parties, on that particular day.  I don’t think of proposing a resolution as a way to impose my idea of fairness or justice, I’m only trying to find something that works for the parties, and that can be hard enough.

All a mediator fishes for is something that is workable.  A just result is something that you have to hear out of the mouth of a judge.  Settlement has to be right for the parties, and it belongs to them alone.

What mediation gives you is control over your destiny.  It gives you something that is certainly not unfair, because you have to agree to any settlement.  There is that slight sense of anticlimax when it is over, because the judge has not cast thunderbolts at the other party and declared you victorious.  If you have settled a case, at least you have eliminated the uncertainty of what a court might have done to you. Soon after the deal is inked you will realize that the mediator has faded into the background.  In this case all the humans did go their separate ways, and only the cat and the dog missed each other.     

That belt-buckle: it was huge.  In this case blown in from the Eastern Plains, his woman had done him wrong.   The farm had passed out of the family a generation ago, and he was driving long hauls as an over the road truck driver.  Now he was having trouble scheduling parenting time in between loads.

She had kept the child on Thanksgiving when he had sent his mom to pick-up because he was running late.  Some of his child support had been paid late too.  Each parent had gotten steamed, and each had filed punitive contempt motions.  His was for missing Thanksgiving, and hers for the late payments.  Each hired counsel after they were served with the other parent’s contempt papers.

His goal in litigation was a rock solid guarantee about Christmas.  It was a he-said, she-said case.  The lawyers were inexperienced, but not stupid.  They foresaw a very quiet contempt trial if their clients each took the Fifth.  If that happened, both contempt motions would be dead on arrival.  Even if the parties did testify, it was far from certain that their judge would need to have her dignity vindicated by imposing any punitive sentence for a few days of missed parenting time, or a few late child support payments.

The young attorney’s were channeling their clients a bit too much, and their own attempts at negotiating a settlement had bit the dust.   Our lone-ranger’s attorney had seen the light, and filed a verified motion to enforce parenting time.  His client really needed the court orders modified a bit to deal with the kind of situation that had happened at Thanksgiving.

The worry was that the court might just order mediation under CRS 14-10-129.5(c).   So, the lawyer suggested mediation to opposing counsel.  If the offer was accepted perhaps they could also plea-bargain those contempt motions away. If not, or if mediation failed, that could forestall the court from imposing it and ducking the issue before the holidays.

In this holiday season, don’t forget your friendly neighborhood mediator if you need help to make the holidays happier.