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 several distinctions between mediation and arbitration as they apply to family law matters. Mediation is discussed below.
A mediator is a neutral third party who facilitates communications between parties to assist them in reaching an agreement of some or all issues in dispute. Mediators are most often lawyers who have received special training in the conflict resolution process. A mediator does not decide how a case should be resolved, but rather provides the parties with an opportunity to address and resolve their differences by agreement. It is essentially settlement negotiations under the trained guidance of mediator.
In North Carolina, mediation is required in equitable distribution and child custody disputes but it can also be used in other areas of dispute such as alimony and child support. For the required issues, a judge may waive the requirement to attend mediation only in limited circumstances for good cause shown. In most judicial districts, the judge will not schedule the issues in dispute for trial until the parties have participated in mediation.
All counties in North Carolina have a mediator associated with the court who conducts the mandatory mediation required in actions for child custody. The court-associated mediator assists the parties with child custody and visitation-related issues only. However, the parties may select a private mediator to assist them in mediating these as well as other issues. At the mediation, both parties have an opportunity to discuss their side of the case with the mediator and the mediator will work with them to explore settlement options. It is customary for attorneys to accompany their clients to mediations that involve family financial matters in order to advise them of their legal rights and responsibilities, and advantages and disadvantages that may be associated with settlement possibilities.
A mediator selected by the parties or appointed by the court mediates the family financial issues, and it is customary for each party to pay one-half of the mediator’s charges at the conclusion of the mediation session.
Some of the many benefits of mediation are as follows:
- A mediated settlement gives the parties control over the outcome of their case. If a case goes to trial, the judge has exclusive decision-making authority. The judge’s decision can be appealed which can tie the case up in the judicial system for a substantial time.
- A mediated settlement allows the parties to be creative and flexible in their problem-solving. If the parties reach an agreement at mediation, they may agree to things that are beyond the court’s authority. For example, the parties may agree that one or both parties will pay their child’s college education expenses, a voluntary assumption of financial responsibility that the court does not have authority to impose.
- A mediated settlement is much less expensive than a trial. Preparing for and attending a trial can be very costly and time-consuming.
- Mediation is less formal than going to court and, consequently, less stressful.
- Mediation may be scheduled at a date that is convenient for the parties and their attorneys rather than a date mandated by the court.
- A legal action that is filed in state court is a matter of public record. If the parties reach an agreement at mediation, they may elect to memorialize their agreement in a legally binding contract rather than entering into a consent order or judgment in which the court adopts the parties’ agreement as an order of the court, which becomes a public record. For people who are public figures or who have high profile disputes, mediation may provide an alternative venue to settle disputes privately.
The family law attorneys at Tharrington Smith encourage clients to explore settlement options outside of court whenever reasonably possible. We believe that parties understand the complexities and intricacies of their family-related matters beyond that which can be grasped from an outsider’s limited perspective. With appropriate information and guidance, parties are generally better able to reach a resolution that best suits their lives and circumstances, rather than a decision imposed on them by a judge. Moreover, studies show that parties who participate in determining the outcome of their issues are more satisfied in the long-term and more likely to comply with their obligations. Studies also indicate that settlement prospects are greatly enhanced when a trained mediator is brought into the settlement negotiation process.
Even if your case does not settle at mediation, mediation may eliminate or simplify issues to be addressed at trial.