In lieu of, or prior to, having a trial and allowing a judge to determine the outcome of a legal dispute, parties may engage in alternatives to litigation to attempt to resolve their disputes outside the courtroom. Methods of alternative dispute resolution include mediation, arbitration, neutral evaluation, and collaborative law. Mediation and arbitration are the two common forms of alternative dispute resolution used in North Carolina family law. There are distinctions between mediation and arbitration as they apply to family law matters. Arbitration is discussed below.
Arbitration is different than mediation. In arbitration, the parties agree to submit the issues in dispute to an arbitrator instead of a judge, and the arbitrator determines the outcome of the issues in dispute, much like a judge. As with mediation, the arbitrator is a neutral third party who is usually a lawyer trained in not only arbitration but in the substantive law of your case. One of the benefits of arbitration is that the parties can jointly choose their arbitrator.
Family law arbitrations are conducted pursuant to the North Carolina Family Law Arbitration Act. Prior to the arbitration, the parties enter into a written arbitration agreement that sets forth the matters in controversy that the arbitrator is to determine as well as the powers vested in the arbitrator pursuant to the Family Law Arbitration Act.
Arbitration may be appealable or non-appealable. Parties to a family law arbitration often opt for the arbitrator’s decision to be non-appealable in the interest of finality. Arbitration is conducted with some of the formality of court proceedings but the venue is usually the arbitrator’s office and the procedure is often more casual and relaxed. The arbitrator may set deadlines and conduct preliminary hearings. The parties may offer testimony under oath and other evidence. Witnesses can be subpoenaed to appear and testify.
Parties can agree to arbitrate their dispute either before or after a legal action has been filed. Sometimes parties are required to arbitrate their dispute due to provisions in their premarital agreement or child custody, child support or property settlement agreement. Arbitration awards are often confirmed by the court so that they are fully enforceable just like a regular court order. Not unlike mediations, arbitrations permit the parties to keep more of their private lives out of the public view.
While the parties must pay for the arbitrator’s services, substantial economies can be realized as the parties and/or their attorneys work with the arbitrator in formulating an agreement to arbitrate that addresses scheduling issues and issues of how the evidence is to be presented. For example, the parties may wish to allow certain evidence to be received by the arbitrator through written affidavits instead of through live testimony. While the parties may agree upon certain time limits, they can also be assured that the arbitrator will set aside ample time to hear the matter. Courts often do not have that luxury.
Mediation and arbitration are appropriate in most divorce and family related matters, including but not limited to the following:
- child custody, including visitation and relocation;
- child support, particularly child support that requires a deviation from the North Carolina Child Support Guidelines;
- postseparation support and alimony;
- equitable distribution of marital and divisible property and debts;
- seeking to enforce or set aside a separation agreement;
- seeking to enforce or set aside a premarital agreement;
- modification of child custody, child support, and/or alimony; and
- claims for alienation of affection and criminal conversation.
Regardless of whether you need legal representation in a family related matter, or you are seeking a neutral third party to provide services in alternative conflict resolution, the family law attorneys at Tharrington Smith have the skills and experience to meet your needs.
Tharrington Smith attorneys Fred Morelock, Lynn Burleson, Alice Stubbs, and Jaye Meyer are certified as family financial mediators by the North Carolina Dispute Resolution Commission. These dedicated attorneys are available to assist parties and their attorneys in all methods of alternative dispute resolution, including mediation, arbitration, neutral evaluation, and collaborative law. Mr. Burleson, Ms. Stubbs, and Ms. Meyer are family law specialists who are board certified by the North Carolina State Bar.
Mr. Morelock, Mr. Burleson, and Ms. Stubbs are all former District Court judges. These distinguished attorneys offer parties the benefit of their knowledge and insight from years of service on the judicial bench. Mr. Morelock currently devotes his practice to alternative dispute resolution with particular emphasis on serving those with divorce and family related matters. Mr. Burleson has received the arbitration certification training from the American Academy of Matrimonial Lawyers.