What is Mediation?

Many assume that filing a lawsuit will eventually lead to a trial in a courtroom. While trials still occur in North Carolina, many cases today are resolved through alternative dispute resolution (ADR) methods like mediation. In fact, for nearly three decades, North Carolina has required mediation or mandatory settlement conferences in all cases filed in state superior court. Read on to learn more about what mediation is designed to accomplish, how it’s conducted, and how it can benefit you.

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What is Mediation?

When cases are litigated in court, there’s often a “winner” and a “loser.” Mediation is designed to help the parties reach a mutually agreeable resolution. It’s a collaborative phase of the litigation process that comes before trial. It helps the parties avoid the cost, hassle, and uncertainty associated with taking a case to trial and it helps the parties come up with creative solutions for the issues they’re facing because a third-party neutral helps the parties reach a settlement. 

Mediation is often used in family law cases. Weighty issues like child custody, visitation, and parenting decisions may not be well-suited for a judge to decide because a judge’s view of the case is limited to the pleadings and the parties’ arguments in court. A mediator can take a deeper dive into the issues, hear what each party wants, and craft a solution that provides the best outcome for all involved.

When is Mediation Required in North Carolina?

While parties to a lawsuit can opt to mediate their claims in just about any civil case, there are a few situations in which mediation is required before a case proceeds to trial. North Carolina Superior Court actions, child custody disputes, and property division in divorces must all go through mediation before proceeding to trial.  

Only if mediation is unsuccessful will the lawsuit proceed to a hearing or trial before a judge or jury.

How Much Does Mediation Cost?

The cost of mediation varies depending on the mediator you choose, the length of the mediation, and the complexity of the issues presented. Generally, unless the parties reach a different agreement on fees, the cost of mediation is split evenly between the parties. The parties have the option to choose their own mediator or ask the trial court to appoint one.

What Should You Expect from the Mediation Process?

The mediator’s goal is to allow the parties to compromise and resolve the dispute on their own—without being ordered by a judge to take (or refrain from) some action. As part of this process, the mediator chats privately with each party to explore their case’s strengths (and weaknesses) and determine what issues they’re willing to compromise on. The mediator can also discuss settlement options for each party to consider.

Mediation doesn’t always result in a same-day outcome. But sometimes, providing the parties with time to mull over their options helps them reach an agreement, and nothing prevents the parties from setting a second or subsequent mediation, to continue to negotiate.

Steps of Mediation

Opening the Process

At a mediation’s outset, all the parties will be in the room – or on Zoom – with the mediator.  The mediator will explain what the process entails and establish ground rules.   Then, each party will have an opportunity to give an opening statement summarizing his or her side of the story and what they hope to accomplish at mediation. If the party has an attorney, the attorney usually makes the opening statement.  

Defining the Issues and Reaching Agreement 

Though some mediations occur with both parties in the same room for the entire session, in many cases, the mediator uses the “caucus method.” This means that after you and the other party deliver opening statements, the mediator will conference privately with each side about the issues raised in the opening statements. 

The mediator will go back and forth between each party to brainstorm solutions and see where they stand on the issues. The mediator may ask questions or request documents that will provide additional information.  For example, in family law matters, the mediator may want information about school schedules, child support obligations, and the value of certain marital assets. 

In other contexts, the mediator may want to review the contract that governs the parties’ relationship. Discussing each party’s position with them privately gives the mediator a better idea of achievable resolutions. 

Ultimately, if the parties reach an agreement on a particular issue, they will reduce the agreement to writing for signature at the end of the session. If the parties can’t reach an agreement on an issue, the mediator may determine they’ve reached an impasse and end the session. Any issue not settled at mediation will proceed to the next phase of litigation.   

What are the Benefits of Mediation?

A few of the potential benefits of mediation include:

  • Providing and producing resolutions for parties without the lengthy litigation process
  • Allowing parties to think outside the box and craft their own solutions
  • Resolving high-tension situations
  • Avoiding the cost of preparing for and going to trial

Even if mediation is ultimately unsuccessful in achieving a global resolution, it can help narrow the issues you need to litigate. You may be able to settle some, but not all, of your claims which will ultimately limit the scope of the litigation and reduce your overall cost.

In Summary

Although mediation is a way to resolve legal claims outside of court, it’s crucial to be represented by an attorney throughout the process to ensure your legal rights are protected. At Weaver, Bennett, and Bland, our experienced attorneys help clients resolve their claims whether in mediation or in court. Contact us today to see how we can help you.