is the process by which the parties to a dispute seek to resolve their differences in a way other than allowing a judge to make a decision for them. This consensual, self-determination of issues gives the parties greater freedom to “tweak” the outcome to specifically address matters that are more important to each party, yet which our Courts are not particularly adept. In this way the contestants work together to craft an outcome to which they both agree, as opposed to an outcome thrust upon them by a third party (Judge).
At the University of Missouri Law School, the professors were fond of saying, “A good settlement is one that neither party likes, but both parties can live with.” This is the essence of mediation. The parties, through a method of negotiation and compromise, arrive at decisions that are not exactly what they want, but better than the possible results should the matter have been tried to the Court. It is important to note that, while it is given a separate title (mediation), it is, in essence, and form of negotiation, assisted by a third party.
The entire process of mediation (and negotiation, for that matter) is privileged and confidential. That is, the statements made, and offers extended, in mediation may not be repeated to the Court unless they result in an agreement, reduced to writing and signed by the parties. There is no such thing as a verbal mediation agreement in Colorado, absent extenuating circumstances.
This means a participant to mediation may make an offer of settlement, or a number of offers of settlement, and not be bound by said offers, or even have said offers repeated to the Court, should mediation be unsuccessful. This is not an area in which the Court will allow testimony of what transpired in mediation to be presented “through the back door”, or by any means whatsoever. The Courts jealously guard the mediation privilege, as they know that mediation is a setting in which a significant number of cases are settled. The Courts do not want to hear cases: Judges do not want to decide cases if they can avoid it, as Judges agonize over decisions, just as the litigants do also.
There should be a few precepts when considering the merits of trial versus a mediated resolution: