Alternative Dispute Resolution – Mediation

Private and Financial Mediation Services

One of the most stressful parts of a family law case is the surrendering of a vital part of your financial and personal life, as well as the well-being and support of your children to a judge.  While the decisions of the court are by their very nature neutral, they are often not as tailored to individual families as those which can be reached through alternative means.  Additionally, there is no one who knows your family and its needs better than the people in that family.

Although not always an option in all cases and in all claims, many families have found more flexibility by resolving their claims through means which do not directly involve the court, collectively referred to as methods of “alternative dispute resolution.”

One primary type of alternative dispute resolution often used in family law matters is “mediation.”  For matters that can’t be resolved through mediation, an alternative is “arbitration.” Contact us at (704) 844-1400 to schedule a consultation.

What is Mediation?

Mediation can involve all issues stemming from a marriage including spousal support, equitable distribution of property, child support, child custody, and other matters.  The outcome of mediation can be the creation of separation agreements, proposed consent orders, and the modification of agreements and orders. During mediation, a neutral third party (the “mediator”) assists the parties and their attorneys in deliberating and negotiating a settlement, coming to a mutual decision as to the outcome of the claims arising from their marriage. This method can also be used in conjunction with other alternative dispute resolution methods or litigation and can focus on just one or two of the potential claims.  While litigation often focuses on one of these potential issues at any one hearing, mediation also allows parties to consider their whole case and negotiate issues accordingly. The offers and counteroffers, as well as the deliberation of the parties, which take place at a mediation, are confidential, and both the mediator and the attorneys are ethically required to keep and protect that confidentiality.

Different types of Mediation

Private Mediation

Typically occurring within one day, mediation can allow couples to make their own decisions about the dissolution of their marriage in a more relaxed, informal environment than that which is offered in litigation. In this variety of mediation, the parties and their attorneys are present, and the mediator is mutually agreed upon by the parties. These mediators are often former family court judges or current or former lawyers practicing in the area of family law.

During private mediation, the parties and their attorneys are placed in separate rooms and the mediator moves between the two parties, relaying the various considerations and settlement offers made by one party to the other. This method is often costly, as parties may potentially be paying not only their attorney’s hourly rate, but also splitting the cost of the mediator’s fee as well. However, when compared to the costs associated with litigation, if successful, mediation has the potential to avoid substantial costs.

Custody Mediation

In North Carolina, every action filed for child custody requires the parties to the suit attend mandatory mediation. This mediation is provided at no cost, and also requires the parties to attend a custody mediation orientation, which instructs the parties as to the proceedings as well as the benefits of the program. Unlike private mediation, no attorneys are allowed to be present at custody mediation even if one or both parties have hired an attorney. During this mediation, the parties meet with the court appointed mediator and attempt to form a custody arrangement which will accommodate the wishes of the parents as well as the best interests of the child.

If no agreement can be reached, the mediator alerts the court that the case is at an impasse, and the proceeding moves forward as a district court proceeding. If an agreement is reached, the parties have time to allow their attorneys to review the proposed settlement, and it is issued either as an order on permanent child custody or as a settlement agreement regarding child custody.

Financial Mediation

In addition, some jurisdictions have also made mediation mandatory for claims of equitable distribution arising from the parties’ marriage. Unlike custody mediation, the parties’ attorneys are permitted to attend. While the primary focus of this mediation is to deal with the disputes that are related to the division of property accumulated during the marriage, this often also leads to discussion regarding the other financial issues present in many family law cases, including child support, post-separation support, alimony, and attorney’s fees, all or any of which may also be negotiated at this time. Unlike custody mediation, the parties typically still have to pay for this mediation unless they petition the court successfully for financial assistance.