The landlord was as detail oriented as they come.  The tenant was unrepresented and speaking through an interpreter.  The rent had gone up, and the tenant refused to pay the increase.  Instead the tenant continued to pay rent at the old rate.  She had decided that was fair!

Notice had been given, and this was a textbook eviction situation.  The tenant had ignored the cloud on the horizon, and had stayed put, doing what she thought was right.  I think she was just angry, because she did not see the increased rent as justified.  The landlord was confident that the market would bear the increase.  He was playing this as a business decision, cool calm and collected.  He knew he could get the higher rent, either from this tenant or someone else.

We tried all the usual stuff in mediation: a bit of time for her to stay and pack; a bit of money forgiveness for past due rent; a payment plan, and a non-judgment deal, so she would not have the eviction on her record.  These were all the moves you might see in any case.  Landlord and tenant negotiated face to face, were civil, and they came a good bit closer, but no deals were made.  Perhaps the tenant sensed some bond with the judge.  She thought pleading to stay could best be done in court, and that she would be heard there.  The judge was a woman too, and perhaps the tenant could not see her putting a mother and child on the street.  The interpreter seemed good in trying to convey the emotion behind the tenant’s words, but nothing seemed to be getting back to her in the other direction.  This was a stand on principle, and in retrospect it was perhaps not mediable.

The Judge was as thorough as the landlord, who was questioned quite closely on the witness stand.  With every answer a door closed behind the tenant.  We heard that the landlord had even used a translator and interpreter when the lease was signed, just to make sure the tenant understood the deal she was getting into.  He was especially good at this business.  He had doted every “i”, and crossed every “t.”  This was slot machine law, and the machine was in working order.

The tenant had actually been quite engaged in the mediation, but she was speechless in the courtroom.  She had no concept of the law or legal process.  She thought she had power in the mediation and had stood her ground, but now she seemed deflated, and could not get her words out.  She had been digging her heels on a point of principle that her rent should not be increased, but now she chose not to testify. 

I’ve seen this in family cases too, when someone gets ordered to pay guideline child support that they just feel they cannot afford, or when a parent holds out against a persuasive child and family investigator’s report.  The hope against hope strategy is not that effective.

In this case, I remember the utterly shocked look on the tenant’s face when the judge ordered her and her child to be out on the street in 48 hours.  She had sub-tenants in the apartment, and they would be evicted too.  The tenant began to speak, but it was too late.  The slot-machine mechanics of the court’s findings based on the orderly testimony of the landlord had sealed her fate.

Court case related mediation is nearly always a matter of bargaining in the shadow of the law.  When mediations fail, every once in a while I like to ground myself by going back into the courtroom, to see my former colleagues do their stuff.  Every once in a while the unexpected happens, but that is a rare event.  Usually the system works as expected.

This reality creates a useful place for evaluative mediation, when the parties are willing to be receptive, and to act on what they hear, before the hammer falls.  Even the person who will win in court usually prefers the orderly detail that can be put into a negotiated solution.  But then again, it sometimes just ends in a train wreck.

As I handed the Agreement to Mediate over to Petitioner’s counsel she said, “you know I really don’t like signing these things.”  The moment passed and I thought not too much of it until it happened again a few weeks later in another case with another lawyer.

I get it, in the sense that any lawyer really wants to see signatures of the other side on the agreement. It is a trade, and both parties should feel it is good to have the agreement signed.  Here is why.

A written Agreement to Mediate formally recognizes the willingness of parties and counsel to meet in a good faith attempt to resolve the issues.  A well-written agreement should clarify the mediation process, and the mediator’s role in that process.  The text of the agreement can serve as a vehicle to prompt discussions between attorney and client about what is about to happen.  It should also promote some confidence that the mediator knows what he or she is doing.

Most importantly, the Agreement to Mediate clarifies the limits of confidentiality.  In family cases, a tightly drafted agreement will often prompt questions such as “can I tell my new spouse what happened.”  Where that person is influential over a party, it may even prompt a conversation about whether non-parties should have any input in the discussions.

In some cases, it may be appropriate to spell out how much counselors and extended families can be told.  In civil litigation, disclosure to managers, board members, or other professionals can be an important part of who to include.

Typically, it is the umbrella agreement not to subpoena the mediator that is the key protection for confidences uttered in mediation.  This protection should be spelled out by the written agreement.  In some cases spelling out the participant’s understanding of what falls within the scope of statutorily protected “mediation communications” can add additional security.  Having everyone physically present at the mediation sign the Agreement to Mediate is good when it binds everyone to confidentiality thereby promising not to put the mediator on the record about what was said.

As a mediator, there is much in the agreement that I like, such as arrangements for my payment; however, my obligations are largely spelled out in Colorado’s Dispute Resolution Act.  The Agreement to Mediate is really there for the parties.  It should spell out norms for interaction that will make them feel safe to participate.  The Mediation Agreement itself demonstrates that agreements are possible when the agreement is treated as more than an annoying piece of boilerplate.

I have put my Agreement to Mediate online, but I will always tailor it to suit the needs of a specific case when there is the interest to think it through in detail.  So far, nobody has asked, but least my reluctant attorneys and their clients signed.  Things worked out well.

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.

He broke her heart.  She hoped he would stay and be a dad for their son.  He was not quite ready to break the news to people at work, and he certainly did not want to deal with paying child support by an income assignment.

He promised to pay regularly and on time, and she agreed that he could pay her directly.  She thought the money might come faster that way, without the hassle of setting up the registry account.

Now things were adrift. He lost his job for a while, and child support payments became sporadic.  He said he had bought her groceries, but there was no accountability for anything.  I asked them if they would now agree to have all payments made through the Family Support Registry (FSR).

The Family Support Registry is good, even for parents who pay regularly.  I said, next time you think groceries, pay through the FSR.  If you do that, then you have a third party accounting for every penny paid, so that nobody can say that you failed to pay, when indeed you did.

There are many misconceptions about the FSR.  For starters, it is not that same bit of government as your local county child support enforcement unit: it is run by the Colorado Department of Human Services.

Paying into the FSR is also different from having your wages garnished, and you can just write them a check, so that it can be quite private.  In mediating a resolution, this seemed to be the clincher, although I knew the court would almost certainly require payments to go via the FSR. 

In court, there is a special rule that lets FSR records come into evidence easily, which makes proving who has or has not paid much simpler.  The accounting by FSR is that of an honest broker, which cuts down on those "he said she said" disputes based on handwritten notes on scraps of paper. 


I can't say they lived happily ever after, but their accounts were now open and easy to see.

She was a frugal person, lived modestly, and looked after their child.  During the marriage her husband had been a good provider, but now he had a new BMW and there were those pictures of him in the Caribbean with the new girlfriend. She was sure that his income had grown, but how could she prove it?

She had moved to modify child support, and paid the court its $105 filing fee. Then she had taken time off work to attend a status conference at which he did not show up.  Now he was finally there, but without his W2s and tax forms.  She was stumped without the mandatory disclosures.  How could she make him fess up she asked?  We did get support modified, but it was like pulling teeth slowly, and it took a while.

Just in case you ever need to come back, do I have a deal for you I said!  $20 lifetime fee for service, and an agency able to access government records on your income that no private lawyer can see!  I was talking about Colorado’s Division of Child Support Services.

For many people, child support is slot-machine law.  You put the numbers in and the answer pops out. This is especially true in cases where everyone is an employee, rather than self-employed.  It is pointless to mediate the facts when you just need to get them out in the open, quickly and efficiently.  If this is your situation, going to child support enforcement for services can be a much better deal than going to court.

There is a new and really neat online resource that helps people learn about child support services without having to absorb the contents of an entire website.  It is not a video, but more of a narrated slide presentation with clickable links to things like child support worksheets.  It is a clearly stated overview of the child support system for people wanting to explore it on their own.  That is why I have included this on a new resources page on this web site.

My frugal mom took the hint.  In other families, mediation can help when agreements do need to be made about income for parents who are self employed or under-employed.   Mediation is also helpful when a couple has good reason to negotiate and request a deviation from the support guidelines.  The alternative to a mediated outcome is going through disclosure and discovery in court.

Professional help with child support is not needed in every case, which is why I include these resources here.   

She was thinking about the alimony, blissfully unaware that she would have to pay income tax on what she would receive over the years.  He was looking to the tax break, blissfully unaware that the recapture rule would apply because a lump sum was to be paid as alimony immediately after the divorce.  Neither spouse was thinking about the tax implications of Colorado’s newly revised maintenance statute, 14-10-114 C.R.S.

In a divorce settlement between unrepresented spouses, my experience has been that just about nobody thinks clearly abut the tax consequences in mediation.  Usually, the conversation comes around to the dependency exemptions, if there are children, but that is about as far as it goes.

In the scenario offered here, neither party had thought that there might be nasty unexpected income tax consequences arising out of their divorce settlement.   Both would have done well to hire attorneys with some understanding of the tax code.  However, even without that, there is some advice available for free from the IRS.

If you search irs.gov for “divorce settlement,” one of the hits you will see is IRS Publication 504.  This covers a wealth of information, including information about dependency exemptions etc.  There are in fact a myriad of IRS publications that are relevant to divorce, and it is worth reading through these.

For our purposes, IRS Publication 504 explains that generally “Alimony is deductible by the payer and must be included in the spouse's or former spouse's income” So, yes she should be thinking that her alimony will be taxable as income to her.  If he were hoping to cheapen a lump sum cash payout immediately after the divorce by characterizing it as alimony, he might have done well to read that “If your alimony payments decrease or end during the first 3 calendar years, you may be subject to the recapture rule. If you are subject to this rule, you have to include in income in the third year part of the alimony payments you previously deducted. Your spouse can deduct in the third year part of the alimony payments he or she previously included in income.”

The bottom line from my perspective is that if you are working on a divorce settlement without professional help, do check out the information the IRS provides for free.  It might give you a heads up about some unforeseen tax issues.