Vail Law: Here’s a look at the Dispute Resolution Act
Vail, CO, Colorado
You may have noticed that sometimes in life things don’t go precisely as planned. That, in substantial part, is what keeps lawyers busy – picking up the pieces of failed plans and expectations.
Often, when things go bad, people take the wise first step of trying to resolve their disputes through mediation. “Mediation” may be defined as a process whereby the parties to a dispute engage the services of a neutral party (usually a retired judge or experienced attorney who is representing neither party) to help lead the parties towards a mutually satisfactory resolution. Mediation is generally informal, and substantially less expensive than litigation.
In a sense, mediated settlement takes control out of the hands of the court and puts it where it belongs; in the hands of the disputants, allowing them craft or customize a result with which both can live.
But what happens when parties who couldn’t get along in the first place finally come to a mediated resolution, and then one or the other of them refuses to move forward and be bound by it?
That’s where the Dispute Resolution Act comes in. What is the act and what is it intended to accomplish?
The intent of this state law is, in part, “that mediation and ancillary forms of alternative dispute resolution shall be implemented in a manner to effect demonstrable economies of time and money.” In other words, mediated resolutions are encouraged by the legislature to save both time and money.
In order for a mediation settlement agreement to be enforceable as an order of court, the following must be established:
• The parties must reach a partial or complete agreement.
• The parties must agree to reduce the agreement to writing.
• The parties must approve the writing;
• The parties must sign the writing.
• The parties must present the signed writing to the court.
• The court must approve it.
If all these things transpire, then, if and when one or the other of the parties to the agreement balks and refuses to honor the agreement, the non-breaching party may go to court to request a motion for a contempt citation.
The agreement may also be specifically enforceable. In other words, the court may order the breaching party to comply with the specific terms of the agreement. The breach may also be compensable by money damages and/or a fine or other sanction imposed upon the breaching party for insulting the dignity of the Court. If a “prevailing parties” provision was incorporated in the settlement agreement, award of attorney fees and costs may also be available to the non-breaching party.
A failing of at least some parties at mediation is to skip one or more of the six steps detailed above. For example, if they fail to reach full resolution of all matters in dispute, they fail to memorialize in writing the things that were agreed.
Mediation is a prudent and economic step in at least attempting to resolve a dispute before it takes on a life of its own. It is essential, though, to do it right. If mediation is successful – even in part – then the deal must be recorded in writing, signed and approved and submitted to the Court.
If later, things don’t go precisely as expected, then there is recourse to the Court to get things back on track and hold the parties’ feet to the fire, compelling them to honor the deal which was negotiated, bargained for and ultimately struck.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. His practice areas include: business and commercial transactions, real estate and development, homeowner’s associations, family law and divorce and civil litigation. He may be heard on Wednesday nights at 7 p.m. on KZYR radio (97.7 FM) and seen on ECO TV18 as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at email@example.com.
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