Divorce proceedings are usually public. After all, Coloradans have a right to know what our courts are doing in our name. But until they realize this, most people do not think about how important privacy and confidentiality are to them during a divorce.

There are very few ways to get around this rule. Mediation is the clear favorite for Coloradans and the Colorado courts.

Divorce has a way of bringing things out into the open

Divorce decisions routinely focus on children. Their ages and genders, times and locations in their daily schedules, and their physical, mental and emotional health are just a few examples.

But even for couples with no children, most people like to stay relatively quiet about the details of their financial problems and assets.

With or without assets or children, few people want to publicly discuss the infidelity or unpleasant words or behavior that may accompany the end of a marriage.

Mediation and privacy are the law in Colorado

The Colorado courts recognize, strongly encourage and often require mediation and other kinds of alternative dispute resolution (ADR). The headquarters of our state’s Office of Dispute Resolution is in Denver, across the street and in the shadow of the State Capitol.

The text of the ADR statute lays down strict laws about confidentiality in mediation.

Nobody taking part in mediation, including the mediator, can reveal anything said or written in the mediation process. Even judges cannot learn anything, even with a subpoena. There are a few obvious exceptions that you might expect. For example, disclosed are possible if:

  • Everyone, including the couple and the mediator, unanimously agree to disclose.
  • Somebody threatens a child’s safety during mediation.
  • The mediator commits misconduct.

Only at the end of the mediation process can the judge see the well-ironed-out decisions and approve them, sometimes asking for some changes or clarifications.

Like chefs in a restaurant, a couple goes into mediation, cooks up a settlement, plates it, and then serves it to the judge. Judges can send it back if they do not like it, but neither they nor the public gets to see what happened behind closed doors.