Confidentiality in Colorado Divorce and the Family Mediation Process

And, of course, we welcome your suggestions as to new topics for future Spotlights.
 

Are Divorce Mediation Sessions Truly Private?
Are Our Communications to a Family Mediator Fully Protected as Confidential by Colorado Laws?

Absolutely! Colorado mediation law and Colorado mediators’ professional ethics assure divorcing parties or separated parents that − without their consent − their discussions and efforts to resolve divorce and parenting concerns can not be used against them, or accessed by others outside the mediation process.

Colorado's Laws Re Confidentiality

The Dispute Resolution Act (Section 13-22-301 et seq.) of the Colorado Revised Statutes insulates from disclosure to others, and from use in Colorado courts, all communications made in divorce and family (as with all forms of) mediation.

This Colorado law broadly defines a “mediation communication” as

any oral or written communication prepared or expressed for the purposes of, in the course of, or pursuant to, any mediation services proceeding or dispute resolution program proceeding, including, but not limited to, any memoranda, notes, records, or work product of a mediator, mediation organization, or party; except that a written agreement to enter into a mediation service proceeding or dispute resolution proceeding, or a final written agreement reached as a result of a mediation service proceeding or dispute resolution proceeding, which has been fully executed, is not a mediation communication unless otherwise agreed upon by the parties.

This protection is sweeping and excepts narrowly only disclosures to mediators or mediation communications made

• with written consent of the divorce parties and the mediator,
   
• revealing criminal intent or threatening injury to adults or the safety of minors, or
   
• concerning substantial misconduct of a mediator.

All other mediation communications are privileged and immune from admission into evidence in any Colorado divorce or paternity trial, other family law dispute court hearing or administrative proceeding.

Colorado Mediators’ Standards re Confidentiality

In addition to the protections and privilege afforded divorce and family mediation by this Colorado law, Colorado mediators’ professional ethics establish protocols to maintain confidentiality.

As an example, the Colorado Model Standards of Conduct for Mediators direct Colorado mediators to

• preserve confidentiality of all mediation proceedings,
   
• conduct the mediation to afford the greatest protection of confidentiality afforded by Colorado law,
   
• advise parties re confidentiality’s boundaries,
   
• not disclose mediation communications, except as authorized,
   
• constrain the participation of observers or third parties, by requiring appropriate confidentiality agreements,
   
• maintain client’s confidentiality in records and in research and training materials, and
   
• protect the mediation's confidentiality by resisting subpoenas or third party’s (including lawyer’s) efforts to compel the mediator’s testimony or disclosure of mediation discussions.

These standards, though intended for voluntary use, have been endorsed by the Colorado Bar Association, Colorado Judicial Institute, the Colorado Department of Law, the Office of Dispute Resolution of the Colorado Judicial Department, and importantly, the Colorado Council of Mediators (CCMO) − Colorado’s mediators’ professional organization.

A second ethics code, the Colorado Council of Mediators' Code of Professional Conduct, imposes similar obligations of confidentiality in the mediation process.

Divorce and Family Mediation:
A Protected and Confidential Process In Colorado

The provisions of Colorado’s statutory framework and dispute resolution law, and the directives of Colorado mediators’ ethics, assure parties a protected and secure environment for resolving their Colorado divorce, parenting or family law matter − in mediation.

As a result, mediators and divorcing couples or separated parents can “brainstorm” and consider new ideas and alternatives in safety. Mediation’s confidentiality is thus another powerful advantage to the ordinary litigated and courtroom approach to divorce.

(See our website’s section on Why Choose Mediation? for other compelling reasons to consider mediation of your divorce case or parenting dispute.)
 

Also consider our website's acclaimed Frequently Asked Questions and Myths resources, where we answer other questions, and debunk commonly held misunderstandings − regarding Colorado divorce laws, court procedures and alternative dispute resolution alternatives, such as family mediation.