For people involved in contentious litigation, mediation may seem like a waste of resources – time, energy and money. Divorce litigation is no exception. Even in situations where this perception is persistent, statistics have shown that mediation settlement conferences allow parties in conflict the opportunity to create longer-lasting resolutions than courts are able to provide upon ruling after a trial.
Because the flexibility that mediation provides is so great, North Carolina courts have found these settlement conferences alleviate caseloads and they have learned to rely heavily on alternative dispute resolution (ADR) methods. In almost every modern trial order, courts require parties to attend at least one mediation session prior to scheduling a matter for trial. An agreement to attend mediation can be made at any point, even before filing a lawsuit.
What is Mediation?
In mediation, a neutral third party, the mediator, is used to help guide parties to a mutually agreeable resolution. A skilled mediator has the ability to listen to the parties and identify specific areas of contention in order to address those issues. A mediation settlement conference should not be confused with arbitration, which is more like a private trial. In arbitration, a neutral third party, an arbitrator, hears testimony and reviews evidence from both parties and makes a binding decision, similar to a judge in court.
The Advantages of Mediation
An experienced attorney, knowledgeable of the kind of matters at hand and specially trained as a mediator, is generally agreed to by the lawyers involved or appointed by the court to manage the settlement conference. A well-trained mediator listens to both sides and offers constructive advice and options that facilitate agreement, unlike a judge who will simply render a decision.
All issues can be addressed in a mediation, including equitable distribution of marital property and debts, child custody, child support, and spousal support.
Mediation allows parties to retain some control of the outcome of their case through agreement and compromise, relieving families of uncertainties that come with a judicial ruling. This provides the parties with opportunities to tailor creative solutions for their unique situation and offers less likelihood of the need for modification in the future.
Mediation allows parties to avoid the costly expense of litigation, including the time required to prepare for a trial. Mediation can be scheduled at a time that is convenient for the parties while everything else in a case is typically set at the convenience of the court.
Mediation and potential agreements discussed at mediation are confidential. Settlements reached at a mediation conference can remain confidential where a consent order entered by the court becomes public record.
Studies have shown that people that find resolution through alternative dispute resolution are more likely to abide by these agreements than they are those ordered by the court.
Mediation is informal, designed to take place in comfortable surroundings, and is often less stressful for the parties. In mediation, no testimony or witnesses are required and parties are not required to be in the same room with one another. The mediator goes back and forth between the different rooms, allowing the parties to be at ease with privacy to speak frankly and directly.
In the event that mediation does not result in a full resolution, it can still help narrow down issues to be addressed and shed light on the opposing party’s case that may be presented at trial.