Mediation in Colorado Civil Lawsuits
Due to the high costs of litigating a lawsuit, there has been a shift in the modern era towards encouraging parties to engage in mediation and alternative dispute resolution procedures to encourage settlement and avoid the high costs of bringing a case to trial. Colorado is no different.
In particular, under Colorado’s Dispute Resolution Act, Colorado Revised Statutes (“C.R.S.”) § 13-22-301 et seq., the legislature has established statutes and procedures designed to implement mediation in all Colorado civil courts.
Under the act, any Colorado court may refer any case to mediation or other alternative dispute resolution program during the progression of the lawsuit. C.R.S. § 13-22-311. This includes lawsuits brought in small claims court, family law cases, landlord-tenant cases, and any other general civil lawsuit initiated in a Colorado court.
However, while any Colorado court may require a case to go through mediation, parties may object to an order for mediation based on a compelling reason. Examples of compelling reasons include where one of the parties claims that it has been subjected to physical or psychological abuse by the other party and does not want to participate in mediation, and where costs of mediation would be higher than the requested relief. C.R.S. § 13-22-311.
In contrast to traditional court procedures, mediation procedures are designed to be nonadversarial and are conducted in a manner designed to encourage settlement. C.R.S. § 13-22-305. In general, there are no set procedures in mediation as there are in trials – e.g., direct examination of witnesses, cross-examination of witnesses, plaintiff’s case, defendant’s case, and rebuttal arguments. Instead, mediation is conducted in an informal setting where both parties sit down with the mediator and discuss the case. The mediator acts as a neutral party who has no decision making authority but acts to help the parties reach a resolution.
Importantly, with some exceptions, all communications made during mediation are confidential and are not admissible in court. C.R.S. § 13-22-307. Exceptions to confidentiality include where the parties consent in writing that the communications are not confidential and where there is a threat of a felony or serious bodily harm by one of the parties.
© 2016 J.D. Porter, LLC; Jordan Porter. Denver, Colorado.