Analogizing its statute with a similar scheme in California, a Colorado appellate court has held that mediation confidentiality cannot be impliedly waived under Colorado law, and any waiver must be express through compliance with statutory exceptions to the mediation privilege.

In GLN Compliance Group, Inc. v. Aviation Manual Solutions, LLC, No. 07CA1563, 2008 WL 4592371 (Colo. Ct. App. Oct. 16, 2008), GLN sued Aviation Manual Solutions (AMS) for allegedly misappropriating trade secrets. The trial court ordered the parties to mediation. During mediation, the parties seemed to reach a settlement agreement, and the attorneys expressed their sense that the agreement would be reduced to a writing that the parties would eventually sign.

When the draft was completed, GLN refused to sign. AMS then moved to enforce the settlement agreement. GLN opposed, asserting that the alleged agreement was not final and therefore was privileged under Colorado's mediation confidentiality statutes. Colo. Rev. Stat. 13-22-301 to -313. The trial court ordered enforcement of the agreement and awarded AMS attorney fees, holding that the on-the-record reading of the settlement agreement and its appearance in the mediation transcript satisfied the statute's requirement of a writing.

On appeal, the Court disagreed, holding that the statute required any agreement be reduced to writing to be excepted from the mediation privilege. Colo. Rev. Stat. 13-22-301(1) ("If reduced to a writing and signed by the parties, the agreement may be presented to the court by any party… and, if approved by the court, shall be enforceable as an order of the court.").

According to the Court, enforcing such a settlement agreement under the exception required six things: (1) a partial or complete agreement, (2) the parties' consent to reduce the agreement to a writing, (3) the parties' approval of the writing, (4) the parties' signatures on the writing, (5) presentation of the signed writing to the court, and (6) approval of the writing as an order of the court. See, e.g., Nat'l Fire Ins. Co. v. Price, 78 P.3d 1138, 1141 (Colo. Ct. App. 2003).

While the Court found some evidence on the record that there was a partial agreement, consent to reduce it to a writing, and approval of the writing, it found that "nothing in the record indicates that the final three requirements were satisfied." It noted the lack of a signed writing, a presentation to the court, or a request at the court to approve the writing as an order.

The Court also held that the mediation confidentiality protection could not be impliedly waived by GLN, as alleged by AMS. The Court observed the similarities between the Colorado and California mediation confidentiality schemes and found the statutory exceptions to confidentiality indicated an intent by the Colorado Legislature to require express, not implied, waiver of any privilege. See Simmons v. Ghaderi, 187 P.3d 934, 944-46 (Cal. 2008) (finding California's privilege not subject to implied waiver).

Accordingly, the Court reversed the order granting the motion to enforce the settlement agreement, and remanded the matter for further proceedings.