Can Mediation be Used Against Me?

 

Mediation is non-binding, should the matter not be resolved, and the offers, counter-offers, and statements of the parties exchanged during mediation cannot be used as evidence in Court, for any purpose, should the matter not be resolved.  This evidentiary exclusion of matters discussed in mediation allows the parties to be open and forthright during mediation, without fear of having their willingness to compromise used against them later at trial, in the event a resolution is not reached.

 

Typically, a mediator may meet with the parties jointly, to exchange thoughts and points of view relative to the matter in dispute, and will also meet separately with the parties to explore their needs and goals in reaching a mediated solution and to honestly discuss the strengths and weaknesses of each party’s position.

How Does Mediation Work?

 

Mediation is a process within which a solution to a potential legal dispute may be crafted by the parties themselves, rather than relying on the Court to determine the solution.  Mediation assists the parties in understanding the strengths and weaknesses of their respective positions, and evaluating the costs, risks, and benefits of a mediated solution, as opposed to proceeding with a lawsuit filed in court.

 

Before a lawsuit is initiated, mediation is wholly voluntary.  Once a lawsuit has been initiated, mediation is required by the Colorado Courts, before a case may proceed to trial.  The purpose of mediation, in either event, it to explore options for resolving the legal dispute before the parties become heavily invested in legal expenses and court costs, and to avoid the risk of an unpredictable outcome at trial.

 

Typically, the parties agree upon a neutral mediator.  The parties provide the mediator with confidential position statements discussing the background, subject, and nature of the dispute, the claims and defenses being asserted, the needs and demands of the parties, and other pertinent information, to provide the mediator with a basis of understanding of the dispute and its potential solutions.  The mediator then meets with the parties and their counsel (if counsel has been engaged) to explore potential solutions to the matter in dispute.

What Happens If We Don’t Reach An Agreement?

 

Mediation may last a few hours, an entire day, or in some more complex matters, multiple days.  Whether or not a solution is reached is voluntary and left totally to the discretion of the parties.  At the conclusion of the process, if a solution is achieved, its terms will be documented and signed by the parties and mediator, thereby resolving the dispute.  If a solution is not achieved, the parties are then free to proceed forward with pending lawsuit or to file a lawsuit.

Who Needs Mediation?

 

Before a lawsuit is initiated, mediation is wholly voluntary.  Once a lawsuit has been initiated, mediation is required by the Colorado Courts, before a case may proceed to trial.

 

Mediation prior to filing a lawsuit is a cost effective and often, less expensive way to resolve a dispute quickly.  If a lawsuit is filed, legal fees and court costs may be substantial and overwhelming.  The emotional and mental stress of being involved in an ongoing lawsuit may also be significant to the individuals involved and difficult to measure in economic terms.  The outcome at trial is frequently unpredictable.  In Colorado, attorney’s fees are not always recoverable by the prevailing party.

 

If mediation is successful, it will avoid the significant legal fees and expenses of completing trial preparation and proceeding to trial, as well as the risk and uncertainty of the result.  A reasonable result through mediation will frequently be a better result, as opposed to the cost, risk and uncertainty of trial.