April 27, 2020
Chances are you have probably heard about the form of alternative dispute resolution known as “mediation.” Parties in cases filed in Superior Court or federal district court are required to conduct a “mediated settlement conference” (also known as a “mediation,” for short) before their case can be tried. Mediation has become more common in family law cases as well, and it is in fact required by the Mecklenburg County family court in all custody matters, in particular.
A mediator is simply an unbiased trained negotiation professional (often a lawyer) whom the parties hire for a limited time to help them explore the possibility of an out-of-court settlement prior to trial. The mediator’s role is to facilitate communications between or among parties, encouraging each side to weigh any available options for a negotiated agreement against the possible risks and rewards associated with proceeding all the way to trial.
The mediator is not a fact-finder or trier of fact--he or she does not decide or rule on anything at all. And a mediated settlement conference is generally much less formal than a trial or a hearing. Each party’s attorney provides a high-level summary of the case, the legal issues presented, and the facts that may be contested by the parties. The mediator learns enough to get familiar with the case and the people and players involved, and then applies his training and expertise in conflict resolution and negotiation skills to help the parties identify common interests (such as the desire for closure, or to avoiding having to pay more attorneys’ fees and other and costs of litigation). An effective mediator is able to help each party consider carefully the strengths and weaknesses of his or her own case, as well as the strengths and weaknesses of the other party’s case, and to make a wise decision regarding whether continuing with litigation is in each party’s best interests.
Mediation is considered a “non-binding” process , meaning that there is nothing a mediator can do or require of any party, other than good faith participation in the process. There will be no decisions or outcomes from the mediation unless the parties agree. But mediation can result in a binding, enforceable agreement. If they do reach an agreement, the terms they agree to will be written up either in what is called a memorandum of settlement or a full settlement agreement.
Kind of like the old saying that “the best day to plant a tree was yesterday, but the next best day is today”--mediation is also frequently more beneficial the sooner it is conducted. In fact, parties can often save substantial attorneys’ fees and expenses (not to mention time) by agreeing to conduct a mediation even before a lawsuit or claim is even filed. But a mediation can be conducted at any time after a case has been filed, but before the issues are submitted to a judge or jury for a binding decision. The sooner a mediation is conducted, if successful, the greater the potential savings.
In some cases, though, parties have to experience some of the ups and downs of litigation and the over-optimistically mis-named “discovery” process in order to participate meaningfully in a mediation. Often there may be initial procedural battles that have to be fought before one side or the other becomes more aware that the perceived justice of their cause is no guarantee of success, even in the hands of a skillful and hard-working attorney. Determining the optimal point in the life cycle of a case for a meaningful mediation may be more art than science, and will vary from case to case.
Some separating couples may hire a mediator to help them negotiate a separation agreement., instead of hiring their own individual attorneys. There are some advantages and disadvantages to mediating without having attorneys involved. Contact us for an initial consultation, oor come in together for an Orientation to Family law.,and we will help you evaluate your case to determine which of the many methods of alternative dispute resolution might be most appropriate for your, your family’s, or your business’ unique needs.