Mediation is a confidential meeting between two parties to resolve an issue, such as the terms of a divorce or a property settlement agreement. It is an out-of-court process in which both parties attempt to agree on a resolution to avoid going to trial. If the parties reach an agreement during mediation, they will sign the settlement for it to become legally binding. If you feel someone forced you to sign an agreement during mediation, you could have grounds to appeal the decision.
How Does Mediation Work?
Learn about the mediation process before you sit down for your meeting with your ex-spouse or another party – especially if you choose to represent yourself rather than to hire a mediation attorney. Knowing how mediation works can prevent you from doing something you don’t want to, such as signing an agreement because you thought you lawfully had to.
Mediation is not as formal as a trial or arbitration. The law does not obligate you to reach an agreement or sign off on anything during mediation. You are free to leave the meeting whenever you want without penalty. Mediation involves you, the other party, your lawyers (if desired) and a mediator. The mediator should be an unbiased third party who does not have ties to you or the other party. The mediator is there to encourage compromises between the two parties, not to side with one or the other or to make a ruling. It will be up to you and the other party to agree to a settlement or proceed to trial.
What Is Duress?
Duress is the legal term for feeling forced to do something against your will due to threats, coercion, intimidation, blackmail, violence, constraints or other actions. During mediation, a mediator will help guide the conversation and steer it toward key points. The mediator should be neutral, honest, excellent at communicating, reasonable and focused on problem-solving.
Although the mediator may press you to talk about certain subjects, the mediator should not make you feel harassed, intimidated or pressured to make any decisions. The other party also does not have the right to bully or manipulate you into accepting the agreement. Emotions may be high during mediation, but no one has the right to force you to sign anything. If you felt pressured or coerced to sign an agreement, you may be able to file an appeal.
What to Do If You Settled Under Duress
You have every right to walk away from a mediation meeting without having agreed to anything. While the goal of mediation is to compromise on key issues and settle a case without going to court, nothing should pressure you into agreeing to something that is against your better judgment. If you did sign a mediation agreement while under duress, you can appeal the decision. The appeals process can be difficult and complicated, however.
The easiest solution is to talk to your ex-spouse. Ideally, your ex will listen to you and agree to renegotiate and create a new agreement. The courts will most likely change the mediation agreement if it has consent from both parties. If your ex-spouse refuses to renegotiate, you will have to make your appeal official. Use a divorce lawyer to help you with the appeals process. You will start by filing a motion with the court explaining that you signed under duress and wish to change the agreement.
You will need to prove that you were under duress for a judge to agree to overturn a mediation agreement. A lawyer can help you with your burden of proof by searching for related evidence, such as threatening text messages from your ex. Your lawyer may also be able to prove duress by showing that the mediator was not a neutral party and was working with or for your ex-spouse. Proving duress could result in the courts nullifying the signed agreement and having your case reopened. Hire a lawyer to represent you during mediation to avoid signing anything you do not wish to sign. A lawyer can also help you with the appeals process in Colorado, if necessary.