A Party’s Guide to Colorado
Court-Ordered Mediation
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Table of Contents
Introduction: Goal of this Guide ....................................................................................................................... 3
What is Mediation/ADR? ..................................................................................................................................... 3
What is Court-Ordered Mediation? ................................................................................................................. 4
Court-initiated ............................................................................................................................................................ 5
Party-Initiated............................................................................................................................................................. 6
Sanctions for Non-Compliance .................................................................................................................................. 6
How do I find and select an appropriate mediator? ................................................................................... 7
Mediation Styles ......................................................................................................................................................... 7
Facilitative Mediation ........................................................................................................................................ 7
Evaluative Mediation ......................................................................................................................................... 7
Transformative Mediation ................................................................................................................................ 7
Collaborative Process ........................................................................................................................................ 8
Early Neutral Assessment ................................................................................................................................. 8
Locating Mediators and Mediation Organizations in Colorado ............................................................................... 8
Other considerations when selecting a Mediator ..................................................................................................... 9
Questions to ask a potential mediator .....................................................................................................................10
Are the things I say in mediation confidential, or can they be used against me? ............................11
General Rule .............................................................................................................................................................11
Exceptions to Confidentiality ...................................................................................................................................12
How do I prepare for a Mediation? ................................................................................................................12
Who does what in the mediation process? ..................................................................................................13
The Role of the Mediator ..........................................................................................................................................13
The Role of a Party ....................................................................................................................................................14
The Role of the Attorney ..........................................................................................................................................15
The Role of Court Staff .............................................................................................................................................15
What do we do about reaching an agreement? ...........................................................................................16
When Agreement is Reached ...........................................................................................................................16
When no Agreement is Reached ......................................................................................................................16
Helpful Links to mediation forms ..................................................................................................................17
ACKNOWLEDGEMENTS ................................................................................................................................17
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Introduction: Goal of this Guide
So, you have been ordered, or anticipate being ordered, by a court to participate in
mediation. The purpose of this Guide is to provide you with information about the entire
mediation process. The Guide hopes to decrease anxiety and intimidation caused by
confronting conflict in an unfamiliar process and setting, while increasing the potential for a
satisfactory agreement.
The Guide is written in a “Frequently Asked Questions” format in everyday language. It
is organized along the life cycle of the mediation process. It can be easily read in its entirety,
or referred back to as needed in each stage. The clickable Table of Contents can direct you to
the specific questions and topics of interest as needed.
This Guide is not legal advice but is intended for general information. For legal advice,
you should consult with your lawyer; for more detailed advice and information, consult with
a professional mediator.
What is Mediation/ADR?
Mediation is a process through which a neutral and knowledgeable person, called the
mediator, trained in conflict resolution, assists you in resolving your dispute. The disputing
parties meet with the mediator, present their sides of the conflict, and are guided by the
mediator to develop their own resolution. The basic premise of mediation is that the parties
involved in a dispute are best able to resolve it themselves, rather than relying upon a third
person, often a judge or magistrate, to impose a decision upon them. Even if the parties do
not resolve any or all of the issues in the mediation, the process helps narrow and clarify the
issues, and perhaps helps find some common ground that had not previously existed.
Mediation is one form of Alternate Dispute Resolution (ADR). A skilled neutral mediator
often gives the parties the opportunity to tell their side of the issue and then work
constructively to resolve it, even if the parties have not been able to resolve the issue in the
past. Other forms, such as arbitration, are closer to a court setting and rely on input from a
neutral third party.
Mediation offers many advantages over having the Court decide the issues for the parties:
• Mediation is much less expensive
If the parties hire attorneys, the attorneys do not have to do as much advance preparation
for mediation as they would for a trial. The mediation is much more informal, and none
of the technical rules of a court hearing apply.
• Mediation is less stressful
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A mediation session is usually informal, avoiding the formality and stress of appearing in
court. As noted below, a resolution may be reached more quickly in mediation than going
to court, thus reducing the stress caused by a lengthy trial and speeding up the time it
takes to put the matter behind the parties.
• Mediation can resolve a dispute much more quickly
A mediation session can be scheduled much more quickly than a court hearing, as a
mediator or mediation organization is much more accessible than the single judge or
magistrate to whom your case has been assigned.
• Mediation is more efficient
A mediation session usually addresses one issue at a time, with the parties engaging in a
back and forth discussion on each issue, attempting to resolve it before moving on to the
next. As a result, time wasting, irrelevant information is avoided.
• Mediation produces a well- coordinated resolution
A mediator will usually set out an agenda at the beginning of the mediation, listing the
issues so that they may be resolved in logical order. The resolution of each issue may be
modified to coordinate and complement the resolution of subsequent issues. The whole
is often greater than the sum of the parts; the final settlement may be more elegant than
the resolution of any one issue or any judgement imposed by a judicial officer.
• Mediation usually produces a resolution much more satisfying and enduring
Parties are generally more satisfied with, and have greater ownership of, an agreement
they have crafted themselves, than with any court order imposed upon them.
• Mediation can transform a relationship for the future
Court hearings, by their adversarial nature, can be corrosive to the existing relationship
between the parties. If the parties anticipate some form of a future relationship, they can
discuss transitioning that relationship into a new, positive one during the mediation. As
noted above, the basic premise of mediation is developing a resolution through
cooperation, coordination, and collaboration.
What is Court-Ordered Mediation?
Colorado law requires or specifically authorizes alternate dispute resolution (ADR)
techniques, including mediation, for many types of cases filed in court. In addition,
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mediation and other forms of ADR are always available to parties involved in a court case if
all parties agree, even if not specifically required by law.
Court-initiated
A court may order mediation or other forms of ADR on its own, even without the parties
asking for it. A court may typically order a form of ADR in the following types of cases:
Family and Children
The parties to a DR or APR case are often referred to mediation early to reduce hostility,
to resolve issues quickly and amicably, and to build a new relationship enabling the parties
to parent effectively in the future. Mediation can be especially effective because it can be
done in the early stages of the case (prior to temporary orders), and again later in the case if
the issues remain unresolved.
Complex domestic relations cases have many tax, pension, bankruptcy, and related
financial issues that can often best be addressed by meditators with significant education
and/or experience in these areas, rather than relying upon the discretion of a judicial officer.
However, if there is an allegation of domestic violence by a party, and any party objects
to mediation, the court cannot force the parties to mediate. Some mediators have special
training in mediating cases with a history of domestic violence, and can be very effective if
the parties are willing to attend mediation. Provisions can be included in a Temporary or
Permanent Protection Order, allowing limited contact for purposes of mediation.
Probate
As in domestic relations matters, probate disputes can be difficult, time consuming,
resource intensive, and highly emotional. Such cases often involve high conflict familial
relationships, or unexpected distribution of an estate.
Mediation can resolve the current dispute and can do so in a manner which can begin the
healing process. The right mediator can also ensure the involvement of all necessary parties
in the decision-making process.
Mediation can also produce highly customized and creative, even quirky, resolutions in
contrast to the more constrained and traditional options available to a judge.
Construction Defects
Construction defect cases can be very complex, time-consuming and expensive, with
multiple parties, multiple properties, and multiple experts.
Colorado law requires that if a construction contract provides for mediation, mediation
must be completed before a case can be filed in court. Colorado law also requires specific
procedures for filing such cases against a “construction professional.”
The mediator should have experience with the complexities of construction defects, roles
of the parties, and facilitation skills for this type of case.
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Homeowners’ Associations (HOA)
Homeowner and neighborhood association disputes often involve covenant compliance,
board improprieties, contractor noncompliance, and construction defects. In addition,
Colorado law encourages, and many homeowner association agreements provide, a
mechanism using mediation, arbitration or other ADR techniques to solve internal disputes
among homeowners.
As parties must continue to live close to each other and within the association, it is
important to resolve the current dispute in a manner which does not further damage the
relationship and could even begin the healing process.
Personal Injury and Wrongful Death
Mediation can be used in personal injury cases to shorten, simplify and save money in
the litigation process. Mediation can resolve the entire case, or be used to reach an agreement
on specific issues within a case. Mediation may be employed at several stages of a personal
injury case depending upon the complexity of a case, technical expert opinions required and
number of disputed facts.
County and Small Claims Court
Mediation can be highly effective in cases filed in both county court and small claims court
involving disputes such as evictions, security deposits and other landlord-tenant issues,
neighborhood conflicts, debt collection, and breach of contract. Since parties often chose to
represent themselves in county and small claims court (called “pro se”), mediation may be
especially helpful.
Mediation prior to trial can spare the parties the anxiety of appearing in court and can
often produce a resolution which is more creative and mutually satisfying than a decision of
a judge.
Several Colorado judicial districts provide small claims court mediators in the courthouse,
at no cost to the parties, immediately prior to their trial.
Party-Initiated
Not all mediations or ADR events must await the order of a judicial officer. In every case
the parties may ask at virtually any time (in district court by motion, orally or informally in
county and small claims court). Unless issues exist such as domestic violence, extreme
circumstance, or good cause as noted above, the court has the discretion to then order
mediation.
Sanctions for Non-Compliance
Judges have the authority to sanction a party or parties for failure to schedule, failure to
appear, or a general failure to comply with a Mediation Order. Because mediation is
confidential (see below), the court cannot inquire into the substance of the mediation, nor
should the judge hear or be told any information regarding what occurred in the failed effort.
Rather, the court will only assess the facial scope of noncompliance.
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Failure to schedule ADR may result in an award of costs and/or attorney fees incurred by
the other party, or a delay in the hearing. Wholesale failure to attend a scheduled event in a
civil matter may result in sanctions that can include vacating the trial date and/or awarding
any costs and fees incurred by the attending party. However, no litigant may be barred from
proceeding in court simply for failure to pay its share of mediation fees or expenses.
Settlement in mediation is voluntary, and even if the parties are ordered to mediate, they
are never ordered to settle in mediation.
How do I find and select an appropriate mediator?
Unlike going to court, where a judge is assigned to your case, the parties to a mediation
and other forms of ADR may select their own neutral.
Mediation Styles
Parties should be aware that there are various styles of mediation. Not all mediations are
the same. Each dispute is unique, and no one mediation style is best for all cases. The best
style of mediation and the mediator for your case should depend on the nature of your
dispute, and the type of result you want the mediation to achieve. There are generally five
styles of mediation:
Facilitative Mediation
For facilitative mediation, the mediator uses mediation skills to help the parties exchange
ideas and proposals to achieve settlement. The mediator will organize issues to be resolved
in a logical manner, actively listen to each side, maintain an environment to allow the parties
to feel heard by each other, restate the parties’ positions, and reframe the issues based on the
exchange of information and perspectives. The mediator may brainstorm with the parties,
jointly or individually, and use similar techniques to facilitate the parties’ resolving their own
disputes to their mutual satisfaction. Facilitative mediation is the style where the parties
retain maximum control over their own affairs.
Evaluative Mediation
Evaluative mediation has all the same features as facilitative mediation but goes further
in terms of the parties requesting the mediator to provide a perspective on the issues being
mediated. If the mediator is a licensed attorney with litigation experience or a retired judicial
officer in the subject matter in dispute, the mediator may be requested to offer an evaluation
of the strengths and weaknesses of each party’s position on the issues. The mediator’s legal
experience may help the parties evaluate settlement options.
Transformative Mediation
Transformative mediation is a variation of mediation in which the focus is not only on a
solution to a current dispute, but also on the continuing relationship of the parties after the
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current dispute is resolved. The primary focus of transformative mediation is to empower
the parties to resolve future issues before they become disputes, or resolve disputes among
and between themselves without the need to go to court in the future. This style of mediation
both resolves the current dispute and transforms the ongoing relationship between the
parties to prevent and resolve future conflicts constructively. Transformative mediation may
be particularly appropriate in cases where the parties will continue to parent together, work
together, or live in a community together.
Collaborative Process
The collaborative process employs a team of experts to advise and assist the disputing
parties to settle the current dispute and, where appropriate, transform the future relationship
among the parties. The team is led by the collaborative process facilitator/mediator who is
assisted by expert neutrals selected by the parties to provide expert advice needed to reach a
satisfactory and sustainable resolution. Such experts are often from the fields of tax, finance,
and psychology, along with others tailored to meet the particular nature of the dispute. Each
party is usually represented by an attorney.
The collaborative process is most frequently used for disputes regarding divorce,
parenting, estate and probate, and family businesses, where the parties will likely have an
ongoing relationship after the dispute is resolved. Developing better problem-solving skills
for the parties to use in their future interactions is among the goals of the collaborative
process.
Early Neutral Assessment
Early Neutral Assessment (“ENA”) is used in domestic relations matters, particularly
parenting disputes, to provide the parents with the benefit of an early assessment by a mental
health professional and an experienced family law attorney, in the hope that settlement can
be reached between the parents without further Court involvement. ENA is considered
inappropriate where there are domestic violence allegations.
Locating Mediators and Mediation Organizations in Colorado
A search of the internet for mediators and mediation organizations in your area will
provide the names of individuals and organizations who perform mediation services. Some
of the statewide mediation organizations are listed below and can be accessed online by
clicking their underlined names.
• The Office of Dispute Resolution (“ODR”) is a part of the State Court Administrator’s
Office and ensures mediation services are available throughout Colorado by contracting
with local private mediators as independent contractors. ODR mediators have completed
forty hours of general mediation training, have been a lead mediator in a minimum of 20
cases, are familiar with the subject matter for cases in which they mediate, undergo
judicial background checks, and complete ten hours of continuing mediation education
annually. ODR mediators accept reduced fees for those parties who cannot afford private
mediators. Those seeking a reduced rate must fill out a Judicial Department Form 211 to
be approved by the court prior to mediation. Ask the Clerk of Court or self-help center of
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your district, or click on the blue link above, and then click on “click here to request
mediation.”
• The Mediation Association of Colorado (“the MAC”) is a Colorado professional mediation
membership organization consisting of independent, private “professional” mediators.
To qualify, members must have submitted to a background check, completed a 40-hour
mediation course, completed 100 hours of mediation as a solo or lead mediator, and
attended at least 10 continuing education credits per year. The MAC maintains a referral
list of trained & experienced mediators. Their phone number is (303) 322-9275.
• Many private mediators have joined together in private mediation practices offering
services in more geographical locations or specialty areas. Consult the Yellow Pages
online or in your phone book for listings.
• JAMS Denver is a private ADR organization providing broad range of dispute resolution
processes including mediation, arbitration, special master, discovery referee, umpire, and
Statutory Judge. JAMS provides highly skilled mediators in several specialized areas.
JAMS members will travel throughout Colorado and the Rocky Mountain region.
• The Alternative Dispute Resolution Section of the Colorado Bar Association (CBA/ADR) is a
voluntary area of interest for attorneys licensed to practice in Colorado. While it is not a
mediation association, it does provide a forum for attorneys with common interests to
share best practices, perform common research, and develop educational programs.
• Your Judicial District may provide a list of mediators. Ask the Clerk of Court or the self-help
center at your courthouse. Remember that any list provided is only a courtesy. Names
on a list are not necessarily approved or certified. Also, Judicial Department employees
may not give advice or a specific recommendation.
• Better Business Bureau (BBB) – Mediation and Dispute Resolution
• Colorado Small Claims Court Programs – some with mediation
• Tribal Mediation Indigenous Peacemaking Initiative
• The Conflict Center in North Denver - which relies on private donations;
• Jefferson County Mediation Services - funded by Jefferson County.
Other considerations when selecting a Mediator
In Colorado, mediators and professional neutrals are not licensed or regulated. However,
the Model Standards of Conduct for Mediators, endorsed for voluntary Colorado statewide
use, provide ethical standards and a framework for mediation practice (See also the
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Association of Family and Conciliation Courts guidelines). Both resources can be found
online by clicking their underlined blue links.
Mediators can be attorneys, retired judges, as well as non-attorney mediators such as
counselors, therapists, psychologists, social workers, ministers, educators, and corporate
managers who handle court-ordered mediations in Colorado, with widely varying experience
in the process and the subject matter.
The mediator cannot, and will not, give you legal advice. It is your responsibility to obtain
independent legal advice if you want it. A mediator who is versed in court rules and
procedure may help the parties to understand the limitations imposed on the court by
procedure and evidence rules. This is particularly important in domestic and probate cases
where official court forms (called JDF forms) are used regularly.
Questions to ask a potential mediator
Mediation in legal areas such as family matters, child support, probate, evictions and
other statutorily regulated areas may require particular subject matter knowledge on the
part of the mediator. Remember, mediators cannot give you legal advice, but legal
knowledge is helpful to fashion a legal and enforceable agreement.
• How long have you been a mediator?
• Are you a lawyer or a non-lawyer mediator?
• What formal mediation training do you have? When and where? Was it specialized?
• What is your experience in mediating my type of case? What is your training and
knowledge in this area?
• Are you a member of a professional mediation organization? Does that organization
have a code of conduct or code of ethics? Does that organization have other
requirements?
• Do you belong to a profession or an organization that requires a fingerprint-
background check?
• Do you have any conflicts of interest or appearances of impropriety with the parties
or the subject matter?
A conflict of interest can arise from involvement by a mediator with the subject matter
of the dispute or from any relationship between a mediator and any mediation
participant, whether past or present, personal or professional, that reasonably raises
a question of a mediator’s impartiality. The mediator must disclose any conflict of
interest or appearance of impropriety in advance. The parties, however, can waive the
conflict of interest or appearance of impropriety if they reasonably believe that the
mediator’s neutrality is not compromised.
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• Do you have experience in mediating cases with significant power imbalance
between the parties (if appropriate)?
• What experience and training do you have addressing cultural impact upon our
dispute (if appropriate)?
Cultural differences can have a significant impact on mediation. Understanding these
differences is important to achieve a balanced and neutral resolution. Some mediators
are specially trained to understand how culture and cultural differences impact a
dispute, and find ways to overcome them.
• What if one or more parties are non-English speaking?
Many mediators are bilingual. Ask if the mediator has taken a competency exam.
Be aware, however, that a bilingual mediator may have an inherent conflict of interest
if the mediator acts as the interpreter or if the mediator understands or relates in
language to one party more than the other. Such inherent conflicts can be eliminated
by the use of an independent interpreter.
There are numerous resources available for assistance with language interpretation
needs. The Office of Language Access, with the Colorado Judicial Branch, provides
interpretation services for mediation at no cost to the parties for cases in which the
parties use an Office of Dispute Resolution contract mediator. The parties may prefer
to hire and pay for a private interpreter service.
• Is there anything about your process that would be helpful for me to know?
• How much do you charge? When and how is payment to be made?
If a party is represented by an attorney, the attorney will select the mediator, after
consultation with the party, using the above criteria. The party should rely upon the
expertise and experience of the attorney in the selection process. The mediator’s fee
agreement is with the parties, though some mediators will expect the representing
attorney to also commit to payment. Most mediators require prepayment of the full
mediation fee, whether paid by the party or the attorney.
Are the things I say in mediation confidential, or can
they be used against me?
General Rule
Colorado law provides some of the most protective confidentiality provisions in the
nation, prohibiting any “mediation communication” from being used in court. Any
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disclosure which does violate confidentiality must be disregarded by any court or
administrative proceeding. In addition, the law prohibits a party, mediator, or mediation
organization, from disclosing any “mediation communication” or communication provided
in confidence.
“Mediation Communication” includes:
• any oral or written communication
• prepared or expressed for the purposes of, in the course of, or pursuant to
• any mediation services proceeding or dispute resolution program proceeding.
Exceptions to Confidentiality
The law provides two exceptions to the definition of “mediation communication.” That
is, the following two documents are not confidential, may be used in court, and may be
voluntarily disclosed:
⬧ the parties’ written agreement to enter into the mediation proceeding, and
⬧ any “fully executed,” “final written agreement” reached as a result of the mediation
proceeding.
In addition, “mediation communications” are rendered not confidential and may be
disclosed under the following circumstances:
⬧ when all parties and the mediator consent in writing;
⬧ when the covered communication reveals an intent to commit a felony;
⬧ when the covered communication reveals an intent to inflict bodily harm,
⬧ when the covered communication threatens the safety of a child under 18;
⬧ when the communication is required by statute to be made public; or
⬧ where disclosure of the communication is “necessary and relevant” to an action
alleging “willful or wanton misconduct” of the mediator or mediation organization.
How do I prepare for a Mediation?
Prior to the mediation session, each party should:
• exchange all information requested by the mediator and relevant to the issues being
mediated.
• clearly understand the issues being mediated.
• define goals of the mediation.
• have attempted to submit a settlement offer to the other party.
• If requested by the mediator, submit a confidential statement to the mediator which
may include a history of the conflict, information about previous attempts to settle, an
assessment of the strengths and weaknesses of each party’s position.
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In order to maintain a positive atmosphere for open discussion and creative thinking,
each party should strive to:
• listen respectfully to others without interruption
• allow the mediator to control the direction of the discussion and ensure all
participants are heard
• tackle the hard questions
• focus on solutions (on what can be done as opposed to what can’t be done)
• stay engaged during each session
Remember, everything said in the mediation session is completely confidential and cannot
be used or even referenced outside of mediation. The parties can therefore feel free to be
open and candid while exploring solutions to each issue and reaching an overall settlement
of the dispute.
Who does what in the mediation process?
The Role of the Mediator
A mediator is an impartial and objective facilitator attempting to assist the parties in
creating a solution to their dispute outside of the litigation process. Mediators do not act as
judges or arbitrators; a mediator does not impose a solution upon the parties. Rather, the
mediator will facilitate the parties themselves reaching their own solution through the guided
use of problem-solving analysis and techniques.
The mediator will usually ask each party to review their side of the dispute to be mediated.
After evaluating the appropriateness of the issues and the ability of the parties to participate,
the mediator will reframe the issues and ensure the parties agree on the agenda. The
mediator will then draw out the core, underlying issues through open-ended questions and
follow-up questions as necessary.
Ideally, proposals for solutions and settlement should come from the parties themselves.
However, the mediator may use his or her background knowledge and experience in
developing creative solutions not previously considered. Mediators should never advocate
one solution over another or direct the parties away from any particular solution, unless such
positions are illegal or unethical.
The mediator may suggest outside resources which might help facilitate solutions to the
dispute. The mediator will assist the parties and their attorney(s) in drafting a Memorandum
of Understanding (“MOU”) reflecting the points agreed to during the mediation. The
mediator can suggest language, but cannot impose such language upon the parties. In the
event the parties do not come to agreement, or only partial agreement, the mediator may
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ONLY report to the court that settlement was not reached, or was partially reached. The
mediator may not discuss nor comment upon the mediation proceedings.
The Role of a Party
The parties are engaging in the mediation to reach an amicable solution to the dispute,
not to perpetuate it. Their role is not to convince the other side of the errors of their position
and the virtue of their own, but to reach a common ground with which each side can be
satisfied. The parties must go into a mediation with an open mind and an intent to negotiate
in good faith.
To do so, the parties should attempt to enter the mediation in a candid, professional, and
fact-driven state of mind. Anger, hatred, and strong emotions can often interfere with clear
thinking and sound judgment.
The parties or their attorneys (if present) will initially state their side of the dispute. It is
important that the opening statement stick to the facts, avoid exaggeration, name calling, or
stating assumed motives of the other side.
If a party is being advised by an attorney, whether or not the attorney is present at the
mediation, the party should always obtain the advice of the attorney throughout the
mediation process, and before agreeing to any solution or an overall resolution. Remember
though that the dispute is that of each party, and not the lawyer; the party is not required to
follow the advice of the attorney. However, a party should be very cautious and confident
with the resolution if proceeding against the advice of the attorney.
Pro Se
A party may want to represent him or herself in the mediation, known as appearing pro
se, to save money or to maintain control of the mediation. Before deciding to proceed without
an attorney, the party should consider the potential of power imbalances in the negotiations.
Such power imbalances may be caused by differing financial resources, each side’s
understanding of the legal process and the law, a party’s ability to communicate under stress,
and the past relationship between the parties including domestic violence or criminal actions.
An attorney can offset any power imbalance.
If a party decides to proceed with the mediation pro se, the party is always well-advised
to consult with an attorney before finalizing any agreement or signing a Memorandum of
Understanding in the mediation. The party should review with the attorney the issues on
both sides, the alternatives which were considered, and the agreement on each of the
disputed issues. The attorney will have the opportunity to review the legality of the entire
agreement and advise the party of the underlying law. An attorney’s advice is never required
but can avoid later dissatisfaction with the agreement reached.
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The Role of the Attorney
Unlike court proceedings, mediations are party driven. The parties actively participate in
all discussions and consult with their respective attorneys to help craft creative solutions and,
ultimately, make the final decision on the outcome.
Parties should be aware that their respective attorneys may have seemingly conflicting
roles between advocating for their interests, yet honoring the cooperative nature of the
mediation.
Attorneys attending Mediation
In “facilitative” and “transformative” mediations, the attorney takes a much more active
role with the party prior to mediation, than during the mediation session. In advance of the
mediation, the attorney will advise the party of the legal issues in dispute, and work with the
party to develop clear statements of the factual disputes. The party and his or her attorney
will discuss satisfactory solutions, and may even brainstorm creative ideas. During the
mediation, the party leads the settlement discussion with the consultation and advice of the
party’s attorney.
In “evaluative” mediation, the attorney takes a much more active role throughout the
entire mediation process, mirroring a court setting. In advance of the mediation, the
mediator may ask the attorney to submit materials such as fact summaries, exhibits, and
briefs of legal issues. During the mediation, the attorney leads the presentation, in
consultation with the party. The attorney offers the legal and factual issues, the party’s side
of the dispute, and responds to the concerns of the mediator. The party corrects and
augments the attorney’s presentation, ensuring an accurate and complete picture is provided
to the evaluative mediator.
Attorneys not attending Mediation
A party represented by an attorney may want to attend the mediation session without the
attorney in order to save money, or to avoid the perceived “posturing” of counsel. In this
case, the attorney should prepare the party more extensively than if the attorney were
attending the mediation. Any agreement reached during mediation should be tentative and
made final only after approval by the attorney. The party should not sign any Memorandum
of Understanding of Settlement Agreement without first presenting it to the attorney for
review.
The Role of Court Staff
Every judicial district in the State of Colorado has a Family Court Facilitator (“FCF”) and
a Self-Represented Litigant Coordinator (“SRLC”). The FCF and the SRLCs have the
important role of explaining the mediation process to litigants. They will explain the general
mediation process to the litigants, as well as the judge’s mediation policy in particular, and
assist the parties with (but not suggest or dictate) a referral to an ODR or private mediator or
service.
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What do we do about reaching an agreement?
When Agreement is Reached
An agreement reached in mediation is reduced to writing, known as a Memorandum of
Understanding (“MOU”). To be enforced by the court, the MOU must be signed by the
parties, and their attorneys if represented. The MOU is then filed with the court, and if
approved, becomes the enforceable court order. Please note: Mediators typically do not file
documents with the court.
If the parties are not represented, an experienced mediator can assist the parties to draft
the MOU in a form acceptable to the court. If the parties are represented by an attorney, the
attorneys will draft the MOU.
When no Agreement is Reached
If no agreement is reached, the parties should file a status report, either by themselves or
through their attorney, informing the judge that the parties mediated on a specific date, but
no issues were resolved. If the mediator has determined that mediation was not appropriate
and did not occur, the mediator may provide a document to you to file with the court to verify
you complied with a mediation order.
If some of the issues are resolved, but others remain unresolved, then the parties should
let the court know the specific details of what was resolved and what the parties want the
court to decide.
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Helpful Links to mediation forms
For easy access, below are clickable links to several court forms used throughout the
state, as well as the overall link to the state court website.
Colorado Court ADR Forms – Links to PDF and Word Documents
https://www.courts.state.co.us/Forms/By_JDF.cfm
JDF 607 ADR/Mediation Order (Civil Case)
JDF 608 Motion Re: Exemption from Mediation/ADR Order
JDF 609 Order Re: Exemption from Mediation/ADR Order
JDF 1118 Mediation/ ADR Order (Domestic Case)
JDF 1307 Motion Re: Exemption from Mediation
JDF 1308 Order Re: Exemption from Mediation
JDF 1337 Certificate of Mediation/ADR Compliance
JDF 211 Request to Reduce Payment for ODR Services -Instructions
ACKNOWLEDGEMENTS
“A Party’s Guide to Colorado Court-Ordered Mediation” is adapted from “Mediation Guide for Colorado
Courts” (the “Guide”) a joint project of the Colorado Judicial Institute and the Office of Dispute Resolution
of the Colorado State Court Administrator’s Office. This Guide is drafted by Judge Lynn J. Karowsky,
Chair of the ADR Subcommittee of the CJI, with the assistance of Cynthia L. Hampton. The original Guide
was drafted by a committee consisting of judges, lawyers, and mediators representing several practice
areas, and reviewed by a group of over 30 stakeholders before it was published. This Guide has no
copyright and is available electronically on the Office of Dispute Resolution’s Website at the following link:
Mediation Guide for Colorado Courts. No permission for re-use or re-transmission is required.
As mediation and conflict resolution is an evolving field, some inaccuracies in the Guide may exist. Please
report any corrections to Sharon A. Sturges, Director, Office of Dispute Resolution, Court Services
Division, State Court Administrator’s Office, sharon.sturges@judicial.state.co.us
Posted 6.19
