Chapter 24 - § 24.1 • GENERALLY

• Jurisdiction: Colorado

§ 24.1 • GENERALLY

§ 24.1.1—Colorado Law

Mediation is defined in the Colorado Dispute Resolution Act, C.R.S. §§ 13-22-301, et seq, as "an intervention in dispute negotiations by a trained neutral third party with the purpose of assisting the parties to reach their own solution."¹ The statute addresses various alternative dispute resolution procedures, including mediation, arbitration, med-arb, early neutral evaluation, mini-trials, fact-finding, settlement conferences, special master, and summary jury trial.

Section 2(2) of the Uniform Mediation Act (not adopted by Colorado) gives a somewhat different emphasis in its definition of mediation: "a process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute."

Mediation is typically referred to in the context of judicial or arbitral resolution of disputes. However, in fact, mediation is a process provided for in numerous Colorado statutes. An excellent summary of those statutes is found in Appendix 2 of Choquette, "Colorado Law on Mediation: A Primer."² The word mediation is used more than 100 times in Colorado statutes and 100 times in the federal statutes.

§ 24.1.2—Federal Law

Federal law with respect to mediation in the federal courts is largely found in the Alternative Dispute Resolution Act of 1998, 28 U.S.C. §§ 651, et seq. See § 21.3.1.

In considering whether the mediation privilege applied, a federal court stated that "'mediation is not an adversarial process,' but instead is 'a procedure by which parties reach a mutual agreement with the aid of a third-party who assists in fostering communication between the parties, and does not act as a decision-maker.'"³ An arbitration does not necessarily become a mediation simply because an arbitrator's decision is non-binding.⁴

§ 24.1.3—Kinds Of Mediation

To be within the definition of mediation, the one constant element is that there is no resolution — no settlement — of the dispute unless the parties agree to that resolution/settlement. However, the form of the process to reach a resolution for the agreement of the parties is limited only by the imagination of the participants.

The term "binding mediation" is occasionally used. By definition, there is no such thing as binding mediation, unless it refers to the result agreed upon by the parties as being binding...