Mediation Explained

Mediation is a form of dispute resolution where a trained, neutral third-party assists disputing parties in facilitating a problem-solving conversation in an effort to settle their dispute.[1]  In mediation, parties are able to explore facts and issues that would not necessarily be admissible or relevant in a court proceeding, but are still important to the parties.  Mediation is a consensual process.  Even though a court may order attendance at mediation, whether or not the parties participate in the process and come to an agreement as to the dispute is entirely up to them.[2]  Parties are not obligated to resolve their dispute just because they attend mediation.

The mediation process is confidential.  The information shared during mediation cannot be disclosed through discovery or any other compulsory information gathering process.[3] Except in very rare circumstances, mediation discussions cannot be used as evidence in court proceedings.  Communications that may be revealed outside the meditation are those that “[reveal] the intent to commit a felony, inflict bodily harm, or threaten the safety of a child under the age of eighteen years.”[4]  Otherwise, the negotiations that occur in the mediation will remain confidential.  As such, parties are able to have problem-solving discussions in mediation without worrying that the discussion may be used against them in future litigation.

Agreements reached in mediation can be contractual agreements or can become court orders.  If an agreement is reached during mediation, the agreement is typically memorialized in writing and signed by both parties, giving it the effect of a contractual agreement.  If either party fails to perform pursuant to the terms of the signed agreement, contract remedies related to any breach in the agreement become available.  In Colorado, when a mediated agreement is filed and approved by the court, the agreement has the power and force of a court order.[5]  Further, when a mediated agreement is made into a court order, enforcement of the agreement can be sought through a contempt action against the party who fails to perform.

[1] Douglas N. Frenkel & James H. Stark, The Practice of Mediation  § 1.2,2-3 (2nd ed., Walters Kluwer 2012).

[2] Id. at 3.

[3] § 13-22-307(2), Colorado Revised Statutes.

[4] Id.

[5] § 13-22-308(1), Colorado Revised Statutes; Yaekle v. Andrews, 195 P.3d 1101, 1108 (Colo. 2008).