When people think about the legal world, many times they think about cases being tried in courtrooms, with attorneys advocating tirelessly in front of judges and juries in hopes of getting the best possible outcome for their client. What people may not think about as much are alternative ways to work through a case. Alternative dispute resolution is another way to settle a case without going to court, and one of the most common forms of alternative dispute resolution is mediation.
The American Bar Association defines mediation as a private process where a neutral third person, a mediator, helps the parties discuss and try to resolve the dispute. Although sometimes courts make mediation a requirement for certain types of cases, mediation is otherwise separate from the court and it is not mandatory or guaranteed that parties come to an agreement. Furthermore, The North Carolina Dispute Resolution Commission (DRC) regulates individuals who wish to become mediators. The DRC requires mediators to maintain certain qualifications, including yearly continuing education, in order to maintain the certification.
How exactly does mediation work? Opposing parties, with or without attorneys, come together to discuss issues, concerns, thoughts, and ideas with the neutral third-party mediator and the mediator helps to guide the parties through the process. While mediators can be attorneys, in the role of mediator, they cannot give legal advice. Mediators are there to help opposing parties work through discussions and hopefully come to an agreement without having to go to court. Mediation may be a joint process for the entire session, or mediators may start with the parties in a joint session and then break out individually going back and forth between the two. There are options for flexibility and what works best for each case.
Some additional advantages of mediation are that it is confidential, it is usually less expensive than taking a case to court, and it gives the parties more freedom and creativity with their agreement than they would get from a judge. But, the biggest advantage is that the parties have direct control over the outcome as settlement is only reached if the parties agree. As mentioned above, there are certain times when courts make mediation a mandatory step before taking a case to court.
One example of mandatory mediation is with child custody and visitation. North Carolina General Statute §50-13.1 states that any action that involves a contested issue as to the custody or visitation of a minor child must go through mediation before or concurrent with the settling of the matter for hearing unless the court waives mediation. Additionally, North Carolina General Statute §50-21 states that the Court shall inquire as to the completion of a mediated settlement conference to resolve the equitable distribution claim of the parties. Although the mediated settlement conference could be another form of alternative dispute resolution, many choose mediation because of the control it leaves for the parties.
At Marcellino & Tyson, PLLC, not only can we help you through the mediation process as your attorneys, but we also have attorneys who are mediators themselves. Our newest team member, Deb Dilman, is a certified North Carolina Family Financial Mediator through the Dispute Resolution Commission. This means that Deb has met the education and work experience requirements as well as completed mediation training, observation, and good character requirements.
If you have an upcoming mediation or are considering mediation, here are some of Deb’s best practices: Come prepared: even if you don’t have an offer to make or respond to, come to mediation with an understanding of what your case looks like; Listen to your attorney (if you have one): the mediator’s role is not to explain the law, your attorney knows the law and your case and is who should be giving you legal advice; Come ready to compromise: while mediation does not guarantee a settlement, have the mindset that you will finish your case at mediation and set a hopeful expectation that you will enter into an agreement upon resolution.
Deb recently had a case where the flexibility of mediation worked to everyone’s advantage. She began the mediation with the parties together in a joint session. During the joint session, the parties had generally agreed on a parenting schedule but had not worked out the details for the holidays and summer breaks from schools. At a time when Deb would typically break the parties into separate rooms, she realized that the parties were able to engage with each other in a positive and civil way and asked them if they thought it would be beneficial to continue the discussion about the children together, in one room. Each of the parties agreed and were able to resolve all aspects of custody while together. The parties discussed their children and arrangements in a way that was positive for them and their kids, and that is one of the parts of mediation that Deb loves being a part of. Our family law team is equipped to help you through any issues related to your marriage and children.
Whether through mediation, the collaborative process, or seeing a case through to the court hearing, we are ready to work to protect what’s yours. To learn more about mediation and how Marcellina & Tyson, PLLC can help to guide you through the process, give our office a call at 704-919-1519 .
The purpose of Marcellino & Tyson’s blog and information postings is to provide news, general information and a general understanding of the law. All content is for informational purposes only and is not legal advice. In addition, reading our informational news does not establish an attorney-client relationship. If you are seeking legal advice, we encourage you to contact an attorney to evaluate your needs.