One of the cornerstones of mediation is that the entire process is confidential. Unlike a court trial where nearly everything is public and anyone can walk in off the street to watch the proceedings, mediation is private, more relaxed, and above all confidential. The confidentiality aspect of mediation is key because it allows the parties to communicate freely with the mediator in an effort to get all the cards on the table so that the picture of a resolution can come into focus. If and when the parties in mediation do reach an agreement or settlement of the dispute it is imperative that the heart of the agreement is memorialized by the mediator into a writing that is signed and dated by the parties. This agreement is also sometimes called a Memorandum of Understanding (“MOU”). At the conclusion of a successful mediation session an MOU should be signed before anyone leaves the mediation session for the day. This ensures that the dispute is resolved and the settlement can be enforced by a court of law if necessary. The importance of confidentiality during mediation is supported in the recent Colorado Court of Appeals case Tuscany Custom Homes, LLC., v. Westover. In this case the court affirmed that the mediators’ emails, communications, notes, and draft agreement, with the parties were inadmissible evidence, protected by the Dispute Resolution Act, C.R.S. § 13-22-307(2)-(3). However, if the parties had signed a Memorandum of Understanding that agreement would have been admissible and would have been enforced by the court. The take away is that if you are a mediator or a party in a mediation all written and oral communications with the mediator are confidential and excluded from being presented as evidence at court, including mediator notes and draft versions of an agreement or draft MOU. If an agreement is reached during the mediation session make sure the deal gets signed by the parties before anyone leaves the mediation session. If you have a dispute or would like to learn more about mediation, feel free to contact Skip Court Mediation for an initial consultation, (970) 888-1375 or visit us at www.skip-court.com.
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