This article provides a brief overview of mediation concepts and uses. Mediation is a powerful and creative dispute resolution process. Associations should consider mediation as an alternative approach for resolving certain disputes that arise in their communities.
Mediation is an informal process where a neutral third party helps the disputing parties to negotiate a mutually acceptable agreement. In mediation, the disputing parties, not the mediator, fashion the terms of any agreement they may reach. No binding result occurs unless and until an agreement is achieved and signed.
This distinguishes mediation from arbitration. In arbitration, a neutral third party hears evidence and then decides the outcome. The arbitrator acts as a private judge, and decides the issues. By contrast, the only binding decision from mediation is an agreement acceptable to both sides.
CCIOA encourages community associations to utilize mediation as part of their mandatory dispute resolution policies. The declarations for some communities may require mediation, arbitration or both, for resolving at least some disputes. Even without mandatory mediation provisions, virtually all Colorado courts now require the parties in a lawsuit to participate in some form of mediation process before going to trial.
Mediation in a county court collection or covenant enforcement case may only be a brief discussion lasting an hour or so on the day of trial with a mediator already appointed by the court. Mediation in a large or complicated district court case can be much more involved. The parties mutually agree to a mediator, and separately submit confidential, detailed pre-mediation statements to the mediator. These mediations, last a day or more, and take place several months before trial. Selection of the appropriate mediator is a critical feature of the mediation process for more complex disputes.
An important feature of mediation is the confidentiality of the process, which is guaranteed by a Colorado statute. Confidentiality allows the parties to be open, candid and creative in exploring solutions, without concerns that any concessions or offers can be used against them in later court proceedings. Additional benefits from mediation include the control which the process gives to the parties concerning the outcome. A mediation agreement can be very far-reaching and creative, addressing what is to be done, who is to perform what actions, and how and when actions are accomplished. On the other hand, courts are generally limited to either money damage awards, or injunctions or declarations to allow, require or prohibit specific acts, all of which are immediately enforceable, and against the will of one side. This limits creative solutions. Mediation does not cause a loss of enforcement mechanism. A mediation agreement is a contract. Therefore, performance can be compelled by later court action if one party does not hold up its end of the bargain
Because mediation is more informal and less process driven than a court proceeding, it is faster and less expensive than going to court. The disputing parties always retain the right to go to court if the mediation is unsuccessful. Nevertheless, mediation will not work if one of the disputing parties is only interested in sending a message, is seeking confrontation, does not have the authority to decide the issues, or lacks ability to make concessions in his/her position.
The attorneys at Altitude Community Law P.C. are well-versed in the benefits, costs and uses of mediation. The legislature and the courts encourage mediation, and it makes good sense.