(1) Dispute resolution meetings may be closed at the discretion of the mediator.
(2) Any party or the mediator or mediation organization in a mediation service proceeding or a dispute resolution proceeding shall not voluntarily disclose or through discovery or compulsory process be required to disclose any information concerning any mediation communication or any communication provided in confidence to the mediator or a mediation organization, unless and to the extent that:
(a) All parties to the dispute resolution proceeding and the mediator consent in writing; or
(b) The mediation communication reveals the intent to commit a felony, inflict bodily harm, or threaten the safety of a child under the age of eighteen years; or
(c) The mediation communication is required by statute to be made public; or
(d) Disclosure of the mediation communication is necessary and relevant to an action alleging willful or wanton misconduct of the mediator or mediation organization.
(3) Any mediation communication that is disclosed in violation of this section shall not be admitted into evidence in any judicial or administrative proceeding.
(4) Nothing in this section shall prevent the discovery or admissibility of any evidence that is otherwise discoverable, merely because the evidence was presented in the course of a mediation service proceeding or dispute resolution proceeding.
(5) Nothing in this section shall prevent the gathering of information for research or educational purposes, or for the purpose of evaluating or monitoring the performance of a mediator, mediation organization, mediation service, or dispute resolution program, so long as the parties or the specific circumstances of the parties' controversy are not identified or identifiable.
Source: L. 83: Entire part added, p. 625, § 1, effective July 1. L. 91: Entire section amended, p. 370, § 4, effective July 1.
ANNOTATION
Law reviews. For article, "From Gladiators to Counselors: The Mediator's Role in Encouraging Attorneys to Problem-Solve", see 50 Colo. Law. 22 (Apr. 2021). For article, "The Past, Present, and Future of Residential Construction Defect Action Reform in Colorado", see 54 Colo. Law. 28 (Jan.-Feb. 2025).
"Mediation communications" does not extend to all communications that may be related to the mediation. Mediation communications are limited to those made in the presence or at the behest of the mediator. After a preliminary settlement agreement had been signed following a mediation, negotiations between counsel and statements to the court were not mediation communications required to be kept confidential pursuant to this section. Yaekle v. Andrews, 195 P.3d 1101 (Colo. 2008).
Mediator's email that was prepared pursuant to a mediation services proceeding is an inadmissible mediation communication. Tuscany Custom Homes, LLC v. Westover, 2020 COA 178, 490 P.3d 1039.
Unexecuted draft agreement offered to prove the existence and terms of an oral agreement reached during a mediation proceeding is inadmissible, regardless of whether the agreement was drafted at the behest of the mediator. Even if the draft agreement was not written at the mediator's behest, it is inadmissible because it documents communications made in the mediator's presence at the mediation. Tuscany Custom Homes, LLC v. Westover, 2020 COA 178, 490 P.3d 1039.