Family & Divorce Counseling in North Carolina
Divorce Mediation and Arbitration in North Carolina
It used to be that the most common way to settle issues arising from the breakup of a marriage was to go to court and have a judge rule on the issues. Now there are several options to resolving disputed issues in a divorce case. Using the courts to resolve issues pertaining to custody, child support, alimony and property distribution can be one of the least satisfactory ways to resolve the issues. In court, the parties lose control of how their case is settled. Court can be costly in terms of lawyer fees for trial preparation and trial. In addition, in complex property distribution or financial cases, a judge may have little to no experience in the issues he or she must resolve. Further, court calendars are crowded, and often having your day a court can take many months. Sometimes there is an even longer wait for a judge to reach a decision. In response to these problems, alternative dispute resolution in divorce cases has become increasingly popular. The most common dispute resolution procedures are mediation and arbitration.
Mediation
Mediation is a process through which a mediator, who is neutral, helps the parties negotiate and work through their disputes to reach a settlement. A mediator is hired jointly by the parties and can be a lawyer skilled in mediation and divorce law or a non-lawyer such as an accountant or psychologist. All mediators receive specialized training in how to conduct a mediation. The mediator does not give either party legal advice and cannot force either party to agree to specific terms. However, the mediator helps the parties communicate their respective needs and reach a compromise. All mediation proceedings are confidential. If a settlement is reached with the mediator’s help, typically, it is written down and signed by the parties as their mediated settlement agreement. It then becomes binding on the parties. The benefit of a mediated settlement agreement is that it is tailored to the needs of the parties and their children and can address unique issues particularly important to the parties’ situation. In mediation, the parties are in control of their agreement rather than a judge imposing a result. Generally people who reach a mediated settlement agreement are more satisfied and less likely to continue having disputes. Both parties usually pay part of the mediator’s fees and his or her own lawyer’s fees if he or she has a lawyer attending the mediation.
In North Carolina, once a lawsuit is filed, mediation in child custody cases is a requirement before a party can bring a custody or visitation issue to court. The court-ordered mediation is held by mediators trained in child custody issues. The mediation is confidential and non-binding. If the parties cannot agree on custody and visitation, then either party may request the court to decide the issues. North Carolina also requires that pre-trial mediation be held in equitable distribution cases.
Arbitration
Arbitration is the other form of alternative dispute resolution used with increasing frequency in family law cases. Arbitration is a procedure where the parties agree to refer their disputes to a third party who will make a decision regarding the disputed issues. The parties agree that the disputed issues will be legally binding on them. This arbitration agreement is a contract between the parties and can also impose on the arbitrator the procedural and evidentiary rules by which the arbitration will be conducted. The arbitration is conducted similar to a trial with both sides presenting evidence and arguments in support of their respective positions. The advantages of arbitration are that it is typically speedier than court proceedings which can be delayed by crowded court dockets, is not public and can be less costly.
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