Alternatives to Court, Part 2: Mediation
In the midst of limitations imposed on the judicial system by Covid-19, we have experienced many successful mediation outcomes using video conferencing. We believe controlling a case through alternative dispute resolution (ADR) is frequently the best way to resolve a case. In the current pandemic, it is also both safe and expeditious when compared with the necessary disruption and delays now imposed on the court system. Virtual mediation has enabled us to continue to utilize ADR to move cases forward safely and efficiently during this time.
Over the past 25 years, the laws governing domestic (family law) cases in North Carolina have shifted dramatically. The trends that have emerged are designed to encourage parties to settle domestic disputes through alternative means of conflict resolution instead of opting for the high stakes of acrimonious courtroom trials. As part of this evolving trend, the North Carolina judicial system has adopted many rules, procedures, and processes in order to provide parties with more opportunities and options to settle their controversies outside of court.
Methods of Dispute Resolution in Family Law Cases:
The North Carolina Dispute Resolution Commission (NCDRC) was formed in 1995 and has been charged with, among other things, certifying and regulating attorneys and others who are allowed to be appointed by the court or chosen by parties to serve as mediators. The NCDRC recommended Family Financial Settlement Rules for Alternative Dispute Resolution (ADR) processes used in family financial matters, and those rules were adopted by the North Carolina Supreme Court. The ADR processes recommended for Family Financial Settlement (FFS) are as follows:
· Judicial Settlement Conferences (if available in that judicial district);
· Mediation (Mediated Settlement Conference); and
· Neutral Evaluation.
In addition to the ADR processes identified above, Family Law Arbitration and Collaborative Law are other ADR processes that may be used in domestic cases.
What Are Family Financial Matters?
Family financial matters are cases that involve legal claims related to financial matters, such as:
· equitable distribution of property;
· alimony;
· postseparation support;
· child support; or
· claims arising out of contracts between parties.
Under North Carolina law, judges have authority to order the parties in any pending legal action that involves family financial matters to participate in mediation.
Mediation is the most common ADR process used in domestic cases, and it has proven to be one of the most successful methods of resolving family-related disputes outside of court.
What to Expect at a Mediated Settlement Conference:
At a mediated settlement conference, a neutral, objective third-party serves as the mediator. Although some psychologists and laypeople may offer mediation services, the majority of mediators are licensed attorneys with special training in dispute resolution and, perhaps most importantly, attorney-mediators usually have knowledge of the law that pertains to the issues in dispute. The mediator does not take sides with either party, and cannot give legal advice to either party. Therefore, it is recommended that each party be represented by a competent family law attorney when participating in mediation that involves family finances, as decisions in these economic matters can have long-term and far-reaching consequences.
In Buncombe County and in other parts of Western North Carolina, it is customary for a mediator to separate the parties at the commencement of mediation. Each party and his/her respective attorney will go into a separate conference room or office, apart from the other party and his/her attorney. This allows each party to speak freely (and confidentially) with the mediator regarding sensitive matters, and may also prevent a party who has a strong personality from attempting to manipulate or intimidate the other party. In some situations, if the parties jointly agree, the mediator may conduct all or part of the mediation with a “joint session” in which the mediator, the parties, and the parties’ respective attorneys (if they are represented by counsel) all meet together in one room.
The mediator’s role is to provide a structured environment in order to try to help the parties maintain civility, stay focused on the issues in dispute, find common ground, and explore settlement options. A good mediator can also filter the parties’ emotions (expressions of anger, hurt, etc., or derogatory name-calling) that may cause face-to-face meetings to break down. Most importantly, an experienced mediator can offer valuable insight and may be able to suggest creative problem-solving solutions that can maximize the chances of reaching an agreement of some or all of the issues in dispute. The mediator you choose to mediate your case can have a powerful impact on whether or not you are able to resolve your disputes through mediation.
In North Carolina, mediation is mandatory in cases that involve child custody disputes and claims for equitable distribution. However, when there are also other matters at issue in a case, such as child support and spousal support, mediators in Asheville and Western North Carolina may try to use mediation to resolve all issues in dispute between the parties through one or more mediation sessions. Mediation required in child custody cases is different from that in family financial settlement cases. For more information on mediation in custody matters, please read our previous blog post: What you should know about child custody in North Carolina.
Reaching an agreement with your spouse (or the opposing party) through mediated settlement likely means both of you must be willing to compromise and make concessions. Mediation requires a cooperative approach, but it provides the parties an opportunity and more flexibility to jointly make decisions they believe are the best solutions to their conflicts.
Choosing a Mediator:
There are many mediators available in the Asheville area. Choosing a mediator who is certified by the NCDRC to conduct family financial settlement matters will improve your chances of having a positive and successful mediation. Whether you need a mediator, or the advice and counsel of an attorney to assist you at (or prior to) mediation, Siemens Family Law Group can help.
Jim Siemens and Ellen Rose are experienced and dedicated family law attorneys who are board certified by the North Carolina Dispute Resolution Commission as Family Financial Mediators. They are available to serve as your mediator, or to represent you at a mediated settlement conference.
Check back soon for Alternatives to Court, Part 3: Family Law Arbitration, and read our previous post, Alternatives to Court, Part 1: Informal Settlement Negotiations, to learn more about the opportunities available in many cases to settle family law matters outside of court.
Jim Siemens
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This article is intended for information purposes only and is not to be considered or substituted as legal advice. This article is based on North Carolina laws in effect at the time of posting.