WESTERN DISPUTE RESOLUTION SERVICES
GUNNISON & CRESTED BUTTE

 

 
AN EXPLANATION OF MEDIATION

Mediation is a form of alternative dispute resolution, which means a way to resolve disputes outside of court.  The parties meet with a mediator who is neutral and has no power to impose any solutions on the parties.  The mediator works with the parties either together or separately to help them analyze both their positions and those of the others in the disputes and find a resolution they can all agree on.   If the parties cannot agree, there is no resolution and any party is free to proceed in court (or, if an action has already been filed, to proceed with the action until there is a final judgment from the court.)

Benefits of Mediation

People who resolve their disputes through mediation have control over their own fates.  They don’t have a resolution to their dispute imposed on them by a judge or jury.  Thus, parties have a better chance of being satisfied with the outcome.  In addition, studies have shown that mediated settlements are more satisfactory to parties than court judgments.

Mediation is also a more cost-effective way to resolve a dispute.  When you file a court action, you not only have to pay the initial filing fees, but also you become subject to the court’s procedures requiring parties to produce documents, answer interrogatories, submit to depositions and respond to motions.  Although parties can represent themselves in some instances, most often litigants in court have attorneys and this increases the expense to the parties.  It can take years before a case goes to trial.  In a mediation, you can appear with or without an attorney.  The extent to which parties exchange information is up to the parties, in consultation with the mediator.  The mediation session can be scheduled to be held in a very short time.  The length of the session, or the number of the sessions, is under the control of the parties.

Mediated settlements can include agreements calling for actions that a court cannot order.  For example, it may be important to a party to obtain an apology from the other side.  This is not something that a court can order. 

How Mediation Works

A dispute can be submitted to a mediator only if all parties agree.  If you want to engage in mediation, you can ask the other parties to agree to participate in mediation or, if you prefer, you can ask us to contact the other parties and seek their cooperation.

Once the parties have agreed to mediate, they will agree on who the mediator will be.  This person will then communicate with the parties to set up a time and place for the initial (and possibly only) mediation session.  The session can be held at a location convenient to the parties even if they are not located in Gunnison County, as our mediators are willing to travel to other counties.

Before the mediation session is held, each party will be asked to submit a confidential statement to the mediator explaining the facts and the position of the party with respect to settlement.  The mediator will not share the contents with other parties without permission from the party writing the statement.

When the parties meet for a mediation session, the parties may come with attorneys representing them or they may come without attorneys—it is up to the parties.  If they want to have people present other than the parties or the attorneys, this should be discussed with the mediator in advance.  In any mediation, it is very important that all parties attend since they will need to be present to agree to any settlement proposed.

The mediator may have them meet together or may have them discuss their positions separately with the mediator, depending on the particular case.  When the mediator meets separately with a party, anything told to the mediator is confidential unless the party authorizes the mediator to share the information with the other party or parties.

The length of the mediation session depends on the case.  Some cases can be settled in a few hours.  In other cases, it may take all day to work out a resolution.  In other cases, it may be more productive to meet for a short time and then set another time to continue the mediation.


Once a settlement is agreed on, it is put into the form of a written agreement and signed by all parties.  This becomes a binding contract which can be enforced in court.

How Do I Mediate If My Dispute Is Already In Court?

Parties can agree to mediate before a court case is filed and this is a good way to proceed since court costs and deadlines can be avoided.  However, mediation can also occur after a court action is filed and in fact, the judge handling a case often requires parties to participate in mediation or some other form of alternative dispute resolution (“ADR”) before a case is set for trial.  Even if a judge has not required the parties to try ADR, the parties can file a motion asking the judge to put a case on hold while they try ADR and this kind of motion is almost always granted.

If mediation takes place while a court case is pending, the statements made during the mediation session are not admissible as evidence in court unless they were also made outside of the mediation session.  The mediator also cannot be required to testify.

           
If the mediation results in a settlement, the parties may want to file the mediated settlement agreement with the court so it becomes a court order.  In any case, the parties would file a motion with the court to have the pending court action dismissed.
 

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