Status of Alternative Dispute Resolution Colorado

Colorado law (C.R.S. 13-22-301) provides for court-affiliated mediation. This program is directed by the Colorado Judicial Branch’s Office of Dispute Resolution (ODR). Parties may choose to mediate or they may be ordered by the court to mediate. The parties may select either ODR mediators or private mediators.

1. Basics of Arbitration and Mediation

(The example below is primarily for a Divorce proceeding. Contact the local Judicial District or ODR office for more details concerning costs.)

What Will the Mediation Cost?

The Office of Dispute Resolution is funded by party fees. ODR charges the following fees for mediation and other ADR services. These rates are subject to change without notice.

 

Domestic Relations

Dependency & Neglect

$40 per party per hour when both parties are present. One hour minimum. $80 per hour when only one party is present. An administrative fee of $40 per party may be assessed for complicated cases.

 

Juvenile, County Court Civil

$40 per party per hour when both parties are present. One hour minimum. An administrative fee of $40 per party may be assessed for complicated cases.

 

District Court Civil & Probate Cases

$65 per party per hour. Two hour minimum. A $40 per party administrative fee is assessed in all cases.

 

Cancellation

If mediation is cancelled with less than 48 hours’ notice, the canceling party will be charged for one hour mediation: $80 (domestic, dependency & neglect, juvenile and county court civil), and $130 (district civil and probate).

 

No-Show

If a party fails to appear for a scheduled appointment, the party will be charged for one hour mediation: $80 (domestic, dependency & neglect, juvenile and county court civil), and $130 (district civil and probate).

 

 

 

 

 

2. Statutory Regulation of Arbitration


COLORADO CONSTITUTION
Article XVIII, § 3: Arbitration Laws
The General Assembly has the duty to enact laws that regulate the arbitration process and to prescribe the powers of the arbitrators. The State’s policy is to encourage arbitration, and all doubts as to whether a dispute is arbitrable are to be resolved in favor of arbitration. While this section does not require arbitration, agreements to arbitrate are enforceable, and actions based on disputes subject to arbitration may be dismissed for failure to comply with the condition precedent


COLORADO RULES OF PROFESSIONAL CONDUCT


Rule 1.11(c)(2): Successive Government and Private Employment.
Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not negotiate for private employment with any person who is involved as party or as attorney for a party in a matter in which the lawyer is participating personally and substantially, except that a lawyer serving as an arbitrator may negotiate for private employment as permitted by Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b).

 

 

Rule 1.12 (a)(b)(d): Former Judge or Arbitrator

Except for an arbitrator selected as a partisan of a party in a multi-member arbitration panel, a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as an arbitrator, unless all parties to the proceeding consent after the disclosure. A lawyer shall not negotiate for employment with any person who is involved as a party or as attorney for a party in a matter in which the lawyer is participating personally and substantially as an arbitrator. A lawyer serving as a law clerk to an arbitrator may negotiate for employment with a party or attorney involved in a matter in which the clerk is participating personally and substantially, but only after the lawyer has notified the arbitrator.

 


Rule 2.1: Advisor

In a matter involving or expected to involve litigation, a lawyer should advise the client of alternative forms of dispute resolution which might reasonably be pursued to attempt to resolve the legal dispute or to reach the legal objective sought.

 

 

 

 

 

 

COLORADO REVISED STATUTES


Statutory Foundation of Arbitration and Mediation in Colorado:

CRS § 13-22-201 et seq: Uniform Arbitration Act of 1975
This Act encourages and strongly favors a policy for settling disputes through the arbitration process, and was adopted in order to establish a statutorily based scheme of arbitration. Doubts concerning whether a dispute is subject to arbitration are to be resolved in favor of arbitration. The Act also explains all aspects of awards provided by ADR, including changing, modifying, or vacating.

 

CRS § 13-22-301 et seq: Colorado Dispute Resolution Act
The Colorado Dispute Resolution Act establishes the Office of Dispute Resolution in the Colorado Judicial Branch and authorizes courts of record to refer cases to many types of ADR. The Act further explains the different types of ADR that may be used, along with defining the statutory language. This Act applies to all mediation services or dispute resolution programs conducted in this state, whether conducted through the office of dispute resolution or through a mediator or mediation organization.



CRS § 13-22-501 et seq: Colorado International Dispute Resolution Act
This Act refers to disputes involving parties of more than one country, or disputes
which are otherwise related to interests in more than one country. In addition, persons participating in an arbitration, mediation or conciliation of an international dispute under the Act are immune from service of process on any civil matter while present in the state for such mediation or other dispute resolution.


 

Other Areas Where ADR Has Been Applied:

Worker’s Compensation

CRS § 8-40-201 (12), (13): Workers' Compensation Act -- Definitions
Defines "mediation" and "mediator" for their use in the Worker’s Compensation Act.

 

CRS § 8-43-205: Workers' Compensation Act -- Settlement and Hearing Procedures -- Mediation
Any party involved in a claim arising the Workers' Compensation Act may request mediation services by filing a request for mediation services with the division. The mediation proceedings will be voluntary and consensual to all parties, and will be considered settlement negotiations.



CRS § 8-43-206: Workers' Compensation Act -- Settlement and Hearing Procedures -- Settlement Conference Procedures
Any employee, insurer, or self-insured employer, involved in a dispute arising under the Workers' Compensation Act may request a settlement conference. The settlement procedures are optional, voluntary, and may not be conducted without the consent of all parties involved in the dispute.

 

CRS § 8-43-206.5: Workers' Compensation Act -- Settlement and Hearing Procedures -- Right to Binding Arbitration
Prior to a hearing, the parties may agree to submit any dispute under the Workers' Compensation Act to binding arbitration. Any award from such arbitration is binding upon the parties, and no other procedure will be available to the parties for the further review of such award.


Insurance

CRS § 10-4-708(1.5): Property and Casualty Insurance -- Motor Vehicle ("No Fault") Insurance -- Prompt Payment of Direct Benefits
If a dispute arises concerning the payment of benefits, the insured or the injured person entitled to benefits and the insurer may agree to resolve the dispute through binding arbitration. In the absence of another agreement by the parties, such arbitration shall be conducted pursuant to the rules promulgated by the commissioner. If there is no agreement concerning binding arbitration, the insured, the injured person entitled to benefits, or the insurer may bring an action in contract in the appropriate court to resolve the dispute.


Damages

CRS § 13-21-102(5): Damages -- Exemplary Damages
Unless otherwise provided by law, exemplary damages shall not be awarded in administrative or arbitration proceedings, even if the award or decision is enforced or approved in an action commenced in a court.

 

CRS § 13-21-301: Damages -- Settlements, Releases and Statements of Injured Persons
If a person is injured as a result of an occurrence which might give rise to liability and is a patient under the care of a practitioner of the healing arts or is hospitalized, a person whose interest is adverse to the injured person may not, within thirty days after the date of the occurrence causing the injury: attempt to negotiate a settlement with the injured patient; or attempt to obtain a general release of liability from the injured patient. Any settlement agreement entered into or any general release of liability given by the injured patient in violation of this section will be considered void.




Family Law
CRS § 14-10-115(3)(b)(III): Child Support Guidelines--Schedule of Basic Child Support Obligations
Upon request of the noncustodial parent, the court may order the custodial parent to submit an annual update of financial information. If the noncustodial parent claims that the custodial parent is not spending the child support for the benefit of the children, the court may refer the parties to a mediator to resolve the differences. If there are costs for such mediation, the court shall order that the party requesting the mediation pay such costs.


CRS § 19-1-117.5(1)(c): Disputes Concerning Grandparent Visitation
Upon an allegation of noncompliance with grandparent visitation, the court shall determine whether there has been or is likely to be a substantial and continuing noncompliance with the visitation order. The court may then require said parties to seek mediation and report back to the court on the results of the mediation within sixty days. Mediation services shall be provided, and at the end of the mediation period, the court may approve an agreement reached by the parties or shall set the matter for hearing.

 

Fiduciary Duties

CRS § 15-1-804(2)(r): Fiduciaries' Powers Act--Powers Available
During the period of administration of the estate or trust and until final distribution, a fiduciary has the power to pay, contest, or otherwise settle claims by or against the estate or trust, including taxes, assessments, and expenses, by compromise, arbitration, or otherwise.

Governmental Concerns

CRS § 24-60-1301: Art. IX: Multistate Tax Compact--Arbitration
Whenever a taxpayer has a dispute concerning income taxable both in and outside of the State, he may secure arbitration of an apportionment or allocation, if he is dissatisfied with the final administrative determination of the tax agency of the State. Each party State hereby consents to the arbitration as provided herein, and agrees to be bound thereby. The Arbitration Board shall be composed of one person selected by the taxpayer, one by the agency or agencies involved, and one member of the Commission's Arbitration Panel.


CRS § 24-91-103.5(2)(d): Construction Contracts With Public Entities--Public Entity--Contracts--Delay Clauses
Delay clauses in public works contract regarding arbitration or other procedures to settle contract disputes are not considered to be void against public policy..

CRS §§ 30-6-101, 102, 104, 110: Location, Change and Settlement of Boundaries--Survey of Boundaries--Arbitration
In situations involving boundary disputes, after a survey has been completed, the parties may be entitled to require of the other an arbitration for the settlement of the matter, from which arbitration there shall be no appeal, and the decision shall be final. When such arbitration is required, the board of county commissioners of each county shall choose one person from their county, and such persons shall select a third person who shall not be a resident of either county, and such three persons so chosen shall constitute a board of arbitration.


CRS § 31-15-707(1)(a)(III): Public Property and Improvements--Municipal Utilities
If the municipality elects to purchase such works or systems and if the parties in interest cannot agree on the purchase price, they shall enter into a written agreement to arbitrate the matter and to abide by the award of the arbitrators, in which event each party shall choose an arbitrator to determine their fair market value. If the two arbitrators cannot agree on the fair market value, they shall choose a third disinterested arbitrator, and the award of any two arbitrators shall be final and binding upon the parties.


CRS § 32-1-1006(4): Sanitation, Water and Sanitation or Water Districts-- Additional Powers--Special Provisions
Any dispute involving a special district furnishing sanitation and any customer of such district in which physical damage to the property of the customer in the amount of ten thousand dollars or less is alleged to have been caused by the actions of such special district may be submitted with the consent of the district and the customer to alternative dispute resolution procedures. Notwithstanding any other provision of law to the contrary, once a party to such dispute has properly submitted the dispute to alternative dispute resolution procedures, neither party shall remove the dispute from the alternative dispute resolution forum without the consent of the other party.



CRS §§ 39-8-107, 108, 108.5: County Boards of Equalization-- Decisions--Review--Opportunity to Submit Case to Arbitration
In order to give taxpayers an alternative to pursuing an appeal of the County Board of Equalization's decision through either the Board of Assessment Appeals or the District Court, an arbitration process shall be established. The Board of County Commissioners shall develop a list of persons who shall be qualified to act as arbitrators of property valuation disputes. Such list shall be kept in the Office of the County Clerk and Recorder. If the taxpayer submits his case to arbitration, the decision reached under such process shall be final and not subject to review.

 

Public Service

CRS § 26-7.8-103(1)(c): Homeless Prevention Activities Program--Criteria
The homeless prevention activities program established pursuant to this article shall provide, but need not be limited to, mediation services to assist persons in avoiding eviction and foreclosure.




3. Cases Governing ADR in Colorado

Arbitration is Favored in Colorado

Alternative dispute resolution mechanisms are favored in Colorado as a convenient, efficient alternative to litigation. The right of parties to contract encompasses the correlative power to agree to a specific procedure for the resolution of disputes. Enforcement of non-arbitration ADR procedures provides guidance and fosters stability for those seeking the benefits of ADR in their business dealings. Failure to follow the mandates of a valid ADR clause contravenes Colorado's public policy of supporting ADR as well as frustrates the intent of the parties who initially agreed to an alternate remedy to resolve their disputes. See City and County of Denver v. The District Court in and for the City and County Denver, 939 P.2d 1353, 1357 (Colo. 1997).

Colorado public policy strongly favors the resolution of disputes through arbitration. See Huizar v. Allstate Insurance Co., 952 P.2d 342, 345; 1998 Colo. J. C.A.R. 485 (Colo. 1998).

 

The assertion of creative legal theories should not be permitted to undermine the presumption favoring alternative means to resolve disputes. See City and County of Denver v. The District Court in and for the City and County Denver, 939 P.2d 1353, 1364 (Colo. 1997).

Disputes Concerning Arbitration

Any doubts about the scope of an arbitration provision are to be resolved in favor of arbitration. A court may refuse to compel arbitration only upon a showing that there is no agreement to arbitrate or that the issue sought to be arbitrated is clearly beyond the scope of the arbitration provision. See Gergel v. High View Homes, LLC, 996 P.2d 233, 235; 1999 Colo. J. C.A.R. 5564 (Colo. App. 1999).

The court must compel Alternative Dispute Resolution unless it can say with positive assurance that an ADR clause is not susceptible of any interpretation that encompasses subject matter of dispute. See City and County of Denver v. The District Court in and for the City and County Denver, 939 P.2d 1353, 1364 (Colo. 1997).

A valid, enforceable arbitration agreement divests a court of jurisdiction over all issues within the scope of the agreement. See Mountain Plains Constructors, Inc. v. Torrez, 785 P.2d 928, 930 (Colo. 1990).

A party may not avoid a contractual arbitration clause merely by casting its complaint in tort. See City and County of Denver v. The District Court in and for the City and County Denver, 939 P.2d 1353, 1364 (Colo. 1997).

Disputes Concerning The Language of the Arbitration Clause

To decide whether an arbitration agreement encompasses a dispute, the court must determine whether the factual allegations underlying the claims are within the scope of the arbitration clause, regardless of the legal label assigned to the claims. See Austin v. U.S. West, Inc., 926 P.2d 181, 183 (Colo. App. 1996).

In considering the scope of an arbitration clause, broad and unrestrictive language makes the strong presumption favoring arbitration apply with even greater force. See City and County of Denver v. The District Court in and for the City and County Denver, 939 P.2d 1353, 1364 (Colo. 1997).

Review of Arbitration Awards

Arbitrators are final judges of both fact and law on issues submitted for arbitration. Thus, in the absence of appropriate grounds to modify, vacate, or correct an award, a trial court is required to affirm the award without review of the merits. See Judd Construction Co. v. Evans Joint Venture, 642 P.2d 922, 924, 925 (Colo. 1982).


Once entered, an arbitration award is like a judgment. The party challenging its validity bears a heavy burden of establishing sufficient evidence of partiality. See Container Technology Corp. v. J. Gadsden Pty., Ltd., 781 P.2d 119, 121 (Colo. App. 1981).


The issues before a court upon review of an arbitration award are limited to those enumerated in C.R.S. §13-22-214 and §13-22-215, thus a court must follow statutory grounds and may not review merits of arbitrators' decision. See In re Marriage of Gavend, 781 P.2d 161, 162 (Colo. App. 1989).




Conflicts of Interest

Arbitrators have a duty to disclose any potential conflict that could constitute evident partiality-- that is, a relationship which would persuade a reasonable person that the arbitrator is likely to be partial to one side in the dispute. See Giraldi v. Morrell, 892 P.2d 422, 424, 425 (Colo. App. 1994). Evident partiality can be found when a reasonable person would have to conclude that an arbitrator would be predisposed to favor one party to the arbitration. See Morelite Construction Corp. v. New York City District Council Carpenters Benefit Funds, 748 F.2d 79, 84 (2d Cir. 1978).

 

 

Procedures in Arbitration

Generally, when a party takes inconsistent actions with respect to its rights to arbitrate, that party waives such rights. See Cordillera Corp. v. Heard, 200 Colo. 72, 612 P.2d 92, 93 (Colo. 1980).

Valid agreements to arbitrate in insurance policies are to be enforced as written, absent a conflicting and overriding public policy to the contrary in a particular situation. See Peterman v. State Farm Mutual Automobile Insurance Co., 961 P.2d 487; 98 Colo. J. C.A.R. 3507 (Colo. 1998).


 

4. Outline of Districts

• First Judicial District

• Divorce Mediation

• District Court Civil Mediation

• County Court Civil Mediation

• Criminal Mediation

• Second Judicial District

• Divorce Mediation

• District Court Civil Mediation

• County Court Civil Mediation

• Senior Attorney Settlement Assistance Program

• Civil ADR "No Continuance" Program

• Early Neutral Evaluation

• Juvenile Victim-Offender Mediation

• Other Criminal Mediation

• Third Judicial District

• Divorce Mediation

• County Court Civil Mediation

• Fourth Judicial District

Counties Included: El Paso, Teller

• Divorce Mediation

• Divorce Special Master Program

• Divorce Co-Parenting Facilitation

• District Court Civil Mediation

• County Court Civil Mediation

• Dependency and Neglect Mediation

• Criminal Mediation

• Probate Mediation

• Settlement Week

• Fifth Judicial District

Counties Included: Clear Creek, Eagle, Lake, Summit

• Divorce Mediation

• Juvenile Victim-Offender Mediation

• Sixth Judicial District

• Divorce Mediation

• Juvenile Victim-Offender Mediation

• Seventh Judicial District

Counties Included: Delta, Gunnison, Hinsdale, Montrose, Ouray, San Miguel

• Divorce Mediation

• District Court Civil Mediation

• County Court Civil Mediation

• Eighth Judicial District

Counties Included: Jackson, Larimer

• Divorce Mediation

• Juvenile Victim-Offender Mediation

• Ninth Judicial District

Counties Included: Garfield, Pitkin, Rio Blanco

• Divorce Mediation

• District Court Civil Mediation

• Juvenile Victim-Offender Mediation

• Tenth Judicial District

• Divorce Mediation

• Eleventh Judicial District

Counties Included: Chaffee, Custer, Fremont, Park

• Twelfth Judicial District

Counties Included: Alamosa, Conejos, Costilla, Mineral, Rio Grande, Saguache

• Divorce Mediation

• District Court Civil Mediation

• Thirteenth Judicial District

Counties Included: Kit Carson, Logan, Morgan, Phillips, Sedgwick, Washington, Yuma

• Fourteenth Judicial District

• Divorce Mediation

• Fifteenth Judicial District

• Sixteenth Judicial District

Counties Included: Bent, Crowley, Otero

• Divorce Mediation

• Seventeenth Judicial District

• Divorce Mediation

• Juvenile Mediation

• Eighteenth Judicial District

Counties Included: Arapahoe, Douglas, Elbert, Lincoln

• Divorce Mediation

• District Court Civil Mediation

• Civil ADR Plans

• Civil Case Screening

• County Court Civil Mediation

• Dependency and Neglect Mediation

• Juvenile Victim-Offender Mediation

• Other Juvenile

• Probate Mediation

• Annual Settlement Week

• Nineteenth Judicial District

• Divorce Mediation

• Annual Settlement Week

• Twentieth Judicial District

• Divorce Mediation

• County Court Civil Mediation

• Juvenile Victim-Offender Reconciliation Mediation

• Twenty-First Judicial District

• Divorce Mediation

• District Court Civil Mediation

• County Court Civil Mediation

• Small Claims Mediation

• Twenty-Second Judicial District