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MEDIATION
What is Mediation?
Mediation is an informal process in which a neutral third party helps people in conflict negotiate
a mutually acceptable agreement. Mediation is one form of a group of dispute resolution
processes sometimes called alternative dispute resolution, or “ADR.”
What Happens in Mediation?
What happens during the mediation may vary depending on the mediator. Generally, the
mediator begins by describing the process, and the parties are given an opportunity to tell their
side of the story. The mediator then helps identify the issues, suggests a negotiation process,
promotes communication, and helps the parties look at possible options for agreement. During
the mediation, the mediator may meet with each party separately. These separate meetings
provide an opportunity for parties to discuss with the mediator specific concerns or goals that
they might not want to disclose to the other parties. Mediators are not acting as legal advisors,
and will not give legal advice; however, mediators may offer legal information. Mediators will
differ as to the degree to which they facilitate conversation versus direct the conversation, and
as to the degree to which they will help the parties identify possible solutions themselves versus
the mediator offering suggestions or evaluating the strengths and weaknesses of the parties’
positions.
Can I Choose to Mediate, or Do I Need to be Referred?
You may choose to mediate instead of going to court, or before filing a case. A judge may also
order you to mediate. A court order requires you to try mediation; however, a court cannot order
you to reach an agreement. If the court orders you to mediate, you must comply with the order
unless you ask the court to waive (vacate) the order and the court grants the waiver. If you tell
the court you have been physically or psychologically abused by the other party, and that you
are thereby unwilling to mediate, the court must waive the order. Other agencies may also
refer you to mediation or may condition their services on your participation in mediation. In
addition, some contracts may require parties to mediate before they can file a court case.
What are the Benefits of Mediation?
Mediation may be less expensive than going to court.
Mediation is usually faster than going to court.
Mediation is private and confidential.
Mediation gives parties a chance to create a solution which meets their needs.
Sometimes court judgments do not solve the real problem.
Mediation gives parties control over the outcome.
Mediation is often easier on the relationship between the parties than going to court.
What Disputes Can Be Mediated?
Most conflicts can be mediated if parties are open to the idea of settling the dispute. Even if
parties think they will not be able to reach an agreement with the other party, the mediation
process can often help them talk through the problem and agree on a resolution. Mediation has
worked well in the following types of cases:
Domestic Relations, including divorce, custody, property division, parenting time and support.
Mediation may not be appropriate in cases which involve domestic violence.
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Civil, including contracts, fee disputes, landlord/tenant, employer/employee, money demands,
personal injuries, malpractice, and property damages.
Juvenile, including parenting time and support issues for never-married parents, truancy,
dependency and neglect matters, and victim/offender restitution.
Probate, including guardianships, conservator-ships, and estate distribution.
Criminal, including victim/offender restitution.
When Should I Not Mediate?
You should not mediate if you do not believe you will be able to talk about what is important to
you during the mediation, or if you believe the other party has so much power over you that you
will agree to something you don’t really want to agree to. You should also not mediate if you do
not believe you or the other party has the ability to participate effectively in the process.
Mediation may not be appropriate where there has been domestic violence or where one or
more of the parties has serious mental health problems, and mediation is never appropriate if
any of the parties is intoxicated by alcohol or drugs.
What’s the Best Time to Mediate?
You can choose to mediate instead of filing in court, before filing in court, after filing but before a
judgment is entered, or after a judgment is entered. In some cases, such as dissolution of
marriage or post-dissolution matters, you must file a court case in order to dissolve your
marriage or legally change post-dissolution matters such as parenting time or amount of child
support. In other cases, such as a dispute with a neighbor or a small claims dispute, you may
be able to work out an agreement which resolves the problem without going to court. Generally
the sooner you mediate, the better your chances of reaching agreement, assuming you have
sufficient information about the dispute.
How Do I Choose a Mediator?
Mediators are not licensed, certified, or otherwise regulated by the state of Colorado.
Mediators can be mental health professionals, lawyers, or people with other jobs, professions,
or backgrounds. Mediation is available through the Colorado Judicial Department, through
government agencies, through community mediation centers, and through private partnerships,
firms, or individuals. Because the state does not regulate mediators, it is important that you
determine whether the mediator you are considering has the training, experience, and skills you
need. The Colorado Bar Association and the Colorado Council of Mediators and Mediation
Organizations (CCMO_ endorsed voluntary Guidelines for Mediator Education and Training in
1992; these Guidelines, which are currently under review for possible revision, can be found on
the CCMO website at www.coloradomediation.org. Organizations and agencies which offer
mediation generally only accept mediators who have specific qualifications. For example, the
Office of Dispute Resolution has specific Qualifications for Court Mediators which include
requirements that mediators have training and experience and be able to demonstrate their
skills, and community mediation centers typically require that their volunteers to attend training.
CCMO provides a listing of “Guidelines Members,” who are mediators who have met the
requirements of the Guidelines for Mediator Education and Training.
Where Does the Mediation Take Place?
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Mediation typically takes place in courthouses, in community mediation center offices, in
attorneys’ offices, in private mediators’ offices, or in public buildings such as libraries or
community centers. Unlike courts, mediation does not have jurisdictional requirements, and can
therefore take place at any location acceptable to the parties and the mediator
What Happens if I Reach an Agreement?
If you reach an agreement and you have not filed in court, the agreement can self-executing
(that is, it needs no follow up, such as if one party pays the other party at the conclusion of the
mediation and that resolves the dispute); it can be a contract enforceable in court if someone
does not live up to the agreement, if the agreement meets the legal requirements for a contract.
If you have filed in court, or if the case must be filed in court (such as to obtain a dissolution of
marriage), the agreement can become a stipulation reviewed and approved by the court, which
can then be enforceable as a court order if someone should fail to live up to the agreement.
What Happens if I Don’t Reach an Agreement?
If you don’t reach agreement, you have whatever options you had prior to the mediation,
including the possibility of filing a court case if you have grounds to do so.
How Much Will the Mediation Cost?
Costs of mediation vary from free or low-cost (typically community mediation centers or other
primarily volunteer-based programs) to hundreds of dollars per hour. Length of a mediation can
vary depending on the type of the dispute, the complexity of the issues, and the degree to which
parties are committed to reaching a resolution. It is important to discuss the cost before
agreeing to a particular mediator.
Do I Need a Lawyer if I Mediate? If I Have a Lawyer, What Role Does My Lawyer Play in
Mediation?
You are generally not required to have a lawyer if you mediate, although certain mediators may
refuse to take your case if you are not represented by a lawyer. Because mediators are not
legal advisors, and cannot provide legal advice to any party involved in the mediation, it is
important to consult with a lawyer on any issue of interest to you, and not to rely upon mediators
for such advice. If you are represented by a lawyer, your lawyer may or may not attend the
mediation session, depending on the type of case and your decision in consultation with your
lawyer. If the lawyer does attend the mediation, the lawyer’s role depends on the mediator’s
approach, and can vary from solely providing advice to his/her client to taking the lead in
presenting the client’s side of the story to the mediator.
What if I’m Dissatisfied with the Mediation?
If you don’t like the mediation process, or if you are unhappy with the mediator, you can:
(1) tell the mediator what you would like to happen differently.
(2) Choose a different mediator
(3) Complain to the organization the mediator works for
(4) File a grievance with CCMO, although only CCMO members are required to
participate in this process, and not all mediators are CCMO members
(5) If the mediator is licensed in another profession, file a grievance through the process
established by that profession
You may be able to file a lawsuit against the mediator; however, Colorado law gives a high level
of legal protection to mediators.
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