Mediation In Colorado

MEDIATION IN COLORADO:
WHAT IS IT FOR AND HOW DOES IT WORK?

WHAT IS MEDIATION IN COLORADO?

Most people expect to “have their day in court” in the course of resolving their disputes. What most people do not know, however, is that there are numerous alternative methods of resolution that do not require the expense, expertise, and preparation involved in a court trial, yet produce effective settlements. In fact, about 90 % of civil cases settle before trial, in large part due to mediation. [1]

Because the vast majority of controversies end up reaching settlement prior to trial, it is important to understand how the mediation process works in Colorado. At Volpe Law, we see mediation result in successful dispute resolution all the time. For more information, give us a call at 720-441-3328 or complete a consultation request form.

MEDIATION BASICS

Mediation is a term that you have likely seen and interacted with at some point, whether within an employment contract, construction contract, or insurance agreement. The usefulness and effectiveness of mediation is evidenced by its wide usage in settling disputes.

Mediation is “an intervention in dispute negotiations by a trained neutral third party with the purpose of assisting the parties to reach their own solution.”[2] In simpler terms, mediation is a method of coming to an agreement with an opposing party without having to directly interact with them. Rather, a “trained neutral third party,” known as a mediator, assists in the communications and attempts to facilitate a resolution by giving the parties the opportunity to tell their side of the issue and then work constructively to resolve it, “even if the parties have not been able to resolve the issue in the past.”[3]

So what? How could this alternative method be more advantageous than pushing forward to a court trial? Well, we think that individuals who choose to resolve their disputes through mediation benefit in the following ways:

• Cost savings: mediation is much less expensive than trial. Even with the cost of hiring an attorney to aid with the negotiations, more of your money will ultimately be saved because an attorney does not have to do as much advance preparation for mediation as compared to a court trial.
• Lower stress: court trials are stressful (formalities must be observed, proper attire must be worn, and are the culmination of months of legal preparation). On the other hand, mediation is informal and does not involve appearing in a court.
• Quicker and more efficient resolution: for court trials, parties are usually forced to wait at least a few months before their assigned judge is available to hear their dispute. By contrast, mediation can be scheduled much more rapidly because as mediators are much more accessible than any judge. Additionally, according to the Office of Dispute Resolution of the Colorado State Court Administrator’s Office, mediation is more efficient and well-coordinated than court trials. This is due to the fact that mediation sessions tend to address one issue at a time, with parties going back and forth in discussion on each in order to reach a resolution before moving onto the next. Plus, most mediators will provide an agenda at the outset, listing the relevant issues in order of contemplated discussion.
• More satisfying outcomes on both sides: due to their deep and direct involvement in coming to a mediated agreement, parties that mediate are generally more satisfied with their outcomes than parties that choose to take their disputes to trial.[4]

CDRA & THE COURT’S ROLE IN MEDIATION

The Colorado Dispute Resolution Act (“CDRA”) gives trial courts discretion to refer “any and all cases to mediation, unless the case involves only injunctive or other equitable relief, or when there is physical or psychological abuse alleged by a party.”[5] In addition, CDRA specifically enumerates that all rules and regulations concerning mediation “shall be designed to establish a simple non-adversarial format for the resolution of disputes by neutral mediators in an informal setting for the purpose of allowing each participant, on a voluntary basis, to define and articulate the participant’s particular problem for the possible resolution of such dispute.”[6] In this way, mediation is statutorily encouraged and protected for the benefit of individuals (in terms of both time and money).

Once a court orders mediation, the parties have five days to file a motion for an exception to the mediation order for “compelling reasons” (i.e., that the costs of mediation would be higher than the requested relief and previous attempts to resolve the issues were not successful) before the order binds them.[7] In our experience, almost every single judge in every case orders mediation.

After mediation concludes, the plaintiff’s attorney (or the mediator) must file “a written statement that the parties have met with the mediator.”[8] If mediation was successful, the resulting agreement may be reduced to a writing known as a “Memorandum of Understanding,” MOU, or simply a settlement agreement.

On the other hand, if mediation is not successful, the parties “should file a status report, either by themselves or through their attorney, informing the judge that the parties mediated on a specific date, but no issues were resolved.”[9]

CONFIDENTIALITY OF MEDIATION

Another major statute within CDRA addresses the rules of confidentiality surrounding mediation communications and proceedings. This is a pertinent issue because, in the event that mediation is unsuccessful and the parties are brought back to court, a party may wish to reveal an opposing party’s statement made during mediation.

According to CDRA,

“[a]ny party . . . in a mediation service proceeding . . . shall not voluntarily disclose or through discovery or compulsory process be required to disclose any information concerning any mediation communication or any communication provided in confidence to the mediator or a mediation organization . . .”[10]

This bar on disclosure has a few exceptions, including where:

All parties to the dispute resolution proceeding and the mediator consent in writing;
The mediation communication reveals the intent to commit a felony, inflict bodily harm, or threaten the safety of a child under the age of eighteen years;
The mediation communication is required by statute to be made public; or
Disclosure of the mediation communication is necessary and relevant to an action alleging willful or wanton misconduct of the mediator or mediation organization.[11]

But what is a mediation communication? According to the Colorado Supreme Court, “[m]ediation communications are limited to those made in the presence or at the behest of the mediator.”[12] For example, a mediator’s email that was prepared in conjunction with a mediation services proceeding is an inadmissible mediation communication,[13] whereas negotiations between counsel following mediation are not.[14]

CONCLUSION

Mediations are commonplace in Colorado. We see them in almost every case we work. At Volpe Law, our attorneys are ready to help you with your potential dispute: give us a call at 720-441-3328 or complete a consultation request form for more information on how we can help!

DISCLAIMER

The information contained on this website is provided for informational purposes only. It is not legal advice and should not be construed as providing legal advice on any subject matter. Laws frequently change and therefore this content is not necessarily up to date, nor comprehensive. Contact us or another attorney with any legal questions specific to your matter. You may request a consultation by completing our consultation request form.