Frequently Asked Questions
Mediation is a dispute resolution process that is an alternative to hiring lawyers, going to court or continuing in a conflict situation that could escalate. It is a consensual process, meaning both parties must voluntarily agree to mediate the dispute. One exception to this is court-ordered mediation, where a dispute has already been taken to court and the judge or magistrate orders the parties to attempt to mediate the dispute before s/he will hear the case.
The mediator is a trained neutral party that facilitates the mediation process. Mediators are not judges. Their role is to help the individuals or groups involved in the conflict to isolate their issues, list possible solutions to each of those issues and then choose the mutually acceptable solutions to comprise a final agreement.
Going to court can be a long, complicated and costly process. Courts have many procedural requirements that must be fulfilled before a hearing can be set. There is usually a filing fee and sometimes service fees and other administrative fees. Many times it is necessary to hire an attorney to help you with your case and to navigate the legal system. The court process can take a large financial and emotional toll on all parties involved. Our legal system is adversarial, so one party usually prevails over the other. Often people report that even after they have prevailed in court, they don't feel as if they have actually "won."
Mediation gives each party an opportunity to meet their needs. Because the outcome in mediation is determined by the parties themselves, the final agreement can be as unique and creative as the situation requires. There are many situations that can't be fully addressed in court. For instance, in a neighborhood dispute, one party might have been charged with a municipal violation for disrupting the peace with a loud party. The court will give a ruling on that charge, but will not impose any requirements to prevent the party from disrupting the neighbors' peace in the future. Nor will they address solutions to other problems, such as parking or general hostility in the neighborhood. In a mediation, everyone involved in the dispute has a chance to state their perspective on the situation. After the issues have been isolated, the group can come up with creative solutions that solve their problems. The final agreement is put in writing and is binding on all the parties who sign it.
Studies have shown that there is a higher compliance rate with mediation agreements than there is with court orders. If one party to an agreement feels that another party is not complying with the commitments that were made in the mediation agreement, they can request another mediation to clarify or change the terms. If the problem is still unresolved the parties may choose to go to court. Mediation agreements are admissible in court and courts usually treat a mediated agreement as binding and enforceable. CMS does not enforce mediation agreements.
About 90% of all mediated cases are resolved. Sometimes it takes more than one session to work with all the issues and reach an agreement. If mediation does not result in an agreement, you can continue the conflict, choose to leave things unresolved, or go to court. Courts usually look favorably on mediation, even if the attempt doesn't end with a resolution. Colorado Revised Statute § 13-22-307 protects the confidentiality of information disclosed in mediations unless all parties consent otherwise, with the exception of a few extreme circumstances.
Private mediators can help resolve almost any type of dispute, such as international conflicts, labor relations, or child custody disagreements. However, the City of Boulder Community Mediation Service offers assistance for city of Boulder residents in the following areas: landlord-tenant, roommates, neighbors, seniors age 55 or older (at least one party must be a senior), parents and their children, teens, school-related conflicts (BVSD), community groups, homeowners associations (HOAs), non-profit agencies, city of Boulder employees, clients and staff of homeless services, race and cross-cultural relations and human rights. CMS does not offer divorce or child support mediation.
Though business days are preferred, we can schedule a two-hour session in the morning, afternoon or evening, any day of the week; we will do our best to accommodate scheduling requests of all the parties involved. The sessions take place in a conference room at the City of Boulder's Children, Youth and Family Building at 2160 Spruce St., near downtown Boulder, next door to the Spruce Pool. There is parking on the west side of the building. Special accommodation may be made for parties who are unable to travel to our location, however, we do not offer mediation in private homes.
Our service is subsidized with city taxes, so each party (or multiple parties who represent one "side" of the dispute) pays $30. This fee can be waived if it is a hardship. Sometimes one party offers to pay the other side's fee as an incentive to bring them to mediation.
There are several ways to conduct a mediation. We use a co-mediation model, so there will be two mediators present to assist you in the resolution of your dispute. At the start of the mediation, your mediators will introduce themselves and briefly go over the mediation process. They will make sure everyone understands that the process is voluntary and confidential and establish some ground rules for respectful communication. They will explain how individual "caucuses" work (caucuses occur when the mediators separate parties into different rooms and speak privately with them to help them sort through the issues and decide how they want to proceed).
All parties in attendance will then be asked to sign an agreement to mediate. Both sides are given a chance to tell their side of the story without interruption. The mediators will start a list of issues that have emerged as both sides stated their perspective. After a comprehensive list of issues and/or needs is established, the mediators will facilitate a group brainstorming to come up with possible solutions to each issue. The group will evaluate which ideas would best meet their needs. Mediators will meet privately in caucus with each party if necessary. The mutually acceptable solutions will be written up in an agreement which all the parties will sign and receive a copy of. A mediation agreement is a legally binding document and is admissible in a court of law.
There are several ways to bring up the option of mediation to a party with whom you are having a dispute. How you choose to do this might depend on several factors such as the level of hostility between you and them, whether or not the other party is an individual or a company, or your comfort with explaining the mediation process. Options are:
- Call them or approach them in person and ask them if they are familiar with mediation and if they would be willing to try it.
- Refer them to our website or print information from the website to give to them.
- Ask them to call our office and share their perspective on the situation with our staff. Our staff will explain the mediation process and answer any questions they may have. It's important that they understand the mediation service is neutral and is not acting as an advocate for any one party or taking sides in the dispute.
- Write them a letter asking them to mediate. Again, refer them to our website or ask them to call us directly.
- Have our office contact the other party and invite them to mediation with you. After our initial conversation with you, we would call or write the other party and explain that we have been contacted by you regarding the dispute (stated in a general way e.g... security deposit, barking dog, payment of a utility bill, etc.), and that you would like to use our services to resolve your conflict. We explain the process and its benefits and clarify that participation is voluntary. Conversations with all parties are confidential and no information is shared without permission. If they agree to mediate, we work with the parties to schedule the two-hour mediation meeting.
Preparing for a Mediation
Suggestions of what to prepare and bring with you to a mediation:
Parties cannot be listening if they are too busy planning what they are going to say next. You never know what you're going to hear, so don't assume you know what the other person will say.
Bring creative ideas to the mediation table, and be open to the ideas of others. Be ready to put the past in the past and to find ways to form effective solutions for long-lasting peace. Think: anything is possible!
For the sake of time, it is recommended that parties condense their thoughts and experiences on paper beforehand, so that they can be as direct and succinct as possible during the mediation session. A timeline of events and bullet point lists are very useful.
Although the outcome of a mediation session does not depend on physical evidence, it is often helpful for parties to share documentation that helps the other person understand their perspective. Documentation may include such items as: leases or other agreements parties may have entered into prior to mediation, check in/out sheets, photographs, police reports, land surveys, and/or written communications such as emails, letters and text messages. Laws and municipal codes relating to the conflict may be taken into consideration in the mediation process but parties who wish to determine outcomes solely on legalities will be better served in court. Mediators do not give legal advice and do not act as judges or arbitrators or otherwise influence outcomes.
Mediation agreements sometimes affect the lives of other people not directly involved in the conflict. For this reason, it is suggested that all parties potentially impacted by the agreement be included in the mediation session (such as property managers, family members, neighbors, etc.). Additionally, those who are in a position to make decisions, such as Homeowner's Association boards, should be asked to participate. ALL mediation participants need to be pre-screened before attending any scheduled meetings. All parties will be informed prior to the meeting of who will be coming to the meeting for the sake of fairness to all involved.
Parties may bring a friend, relative, partner, or other person to the mediation for support. This is allowable by consent of all participants and the mediators. Mediation staff must be notified ahead of time, have spoken with all parties, and have given approval prior to the mediation session.
Conflict can be disheartening and can make people feel hopeless. But even the most challenging situations have the potential to be transformed through the mediation process. Enter with the intention: "We're going to try our best to make this situation better" to help bring about positive results. Despite past feelings and experiences, your attitude is your choice and is under your control.
Things that are typically not needed at a mediation session:
The goal of mediation is to empower parties to resolve their own conflicts together, rather than relying on litigators to advocate for one side or the other. However, attorneys who can participate in mediation in the spirit of mutually agreeable resolution may be permitted in mediation sessions at CMS by consensus of all parties and the mediators. Interim agreements can be shown to counsel for approval prior to signing, if necessary. As with all parties attending the mediation, attorneys must be pre-screened and pre-approved by CMS case managers.
In the pre-mediation process, case managers will help parties identify and prioritize the issues that are important to them. Parties enter into mediation with some awareness of each other's issues, which may not always be the same. Issues unrelated to those identified in earlier conversations sometimes do arise in mediation and may be addressed if both parties agree and if time permits. Or, a second session may be offered to address other matters, if both parties request it.
CMS case managers and mediators will, to the best of their ability, determine if parties are acting in good faith before they will allow them to proceed with mediation. An expectation of good faith is a necessary component of mediation. Persons using the process for "discovery" in impending lawsuits are violating the expectation of good faith. Additionally, mediation sessions are confidential, and any information collected in a mediation session cannot be used in court.
Check with your case manager before bringing objects, children, or pets to your mediation.