Resolving Disputes Through Mediation Or Arbitration

Mediation and arbitration is considered an informal proceeding in the sense that the parties are not situated in a courtroom with evidence and testimony being presented on the record. Although the parties may not be in a "courtroom setting," the results of a mediation will be just as legally binding as if the parties actually appeared before a judge. A mediator is a trained independent third party with no stake in the outcome of the litigation who will meet with the parties and/or your attorneys to discuss the issues in dispute and to consider ways in which to resolve any disagreements the parties may have to the satisfaction of the parties. Mediation is really a procedure whose objective is to have the parties fashion their own solutions to their disputes, rather than relying on the decision of another person (THE JUDGE) to tell them what they must do.

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How Does Mediation Work?

Certain lawyers have special training in mediation, which may be useful to your case. A list of lawyers who are state certified as divorce mediators can be obtained from the Clerk of Court in your county. Your lawyer may be present at mediation and will protect your interests and make sure you do not agree to something unfair under the law. The opposing lawyer will do the same thing for your spouse. The mediator facilitates communication but does not represent either parties' individual interests.

Mediation is not automatically binding. In order for the results of a mediation to be legally binding, the agreement of the parties must be in writing and after each party and their attorney have reviewed the agreement and determined that the wording is satisfactory, then you and your spouse sign the agreement before a notary public. THEN, and only then, are you bound legally. You should think of mediation as an opportunity to settle your disputes in a manner that is acceptable for you without the delay and risk involved in lengthy, expensive litigation and trial.

Can Mediation Be Used In Child Custody Cases?

Custody mediation is required in all cases involving custody issues. Shortly after the filing and service of the lawsuit (generally within six to eight weeks), an order will be issued by the court and the parties will be ordered to attend parent education and mediation orientation. The parties must attend one mediation orientation session and at least one mediation session. The parties remain in mediation as long as they need to, provided the parties and the mediator feel that they are making progress toward resolving the custody/visitation dispute. If the parties are able to agree on a solution, the mediator will draft a parenting agreement for the parties to sign and the agreement will be entered as an order of the court. If the parties are unable to reach an agreement or if one of the parties or the mediator feels that mediation is no longer a solution, the case will be closed in mediation and a trial will be scheduled to settle the custody/visitation issues.

The court employs the mediator and there is no charge for the custody mediation program. Your lawyer is not directly involved in the mediation program and cannot attend any meetings with the mediator, however, he or she will be advised of the progress of the mediation and will be prepared to assist you with advice and support during the mediation program. Custody mediation is successful in a high percentage of the cases in Mecklenburg County and offers you an opportunity to control the outcome of your own custody dispute.

What About Property Division In A Divorce?

Equitable distribution mediation — In 1997, North Carolina established a pilot program to resolve family disputes involving the division of the marital property and marital debts. There are currently several counties in North Carolina where a pilot program for financial mediation is available. Mecklenburg County has a mandatory equitable distribution mediation program. This program is structured to require mediation or some other form of dispute resolution before the dispute is scheduled for trial.

In disputes involving the division of marital property and debts, a pretrial equitable distribution conference is scheduled early in the case. You and your spouse will be asked to fill out an equitable distribution affidavit by your attorney shortly after your lawsuit is filed. That affidavit is your sworn testimony listing the type of property and debts, which are subject to division by the court. You will list the property and provide documentation as to the value of the various assets listed. The initial conference gives the parties the opportunity to identify areas where information is missing or areas where additional clarification of values and identification is required. A schedule for future conferences will be set at that initial conference and the parties and their attorneys will select a mediator and a deadline to complete the mediation prior to the final scheduling conference.

Mediation is the default method of resolving the disputes involving property and financial issues, however, there are other methods which can be chosen instead of mediation such as arbitration and the use of a judicial settlement conference. Your attorney will assist you is determining the best method for alternative dispute resolution based on the particular facts and circumstances of your case. An impartial mediator who is usually an experienced family law attorney conducts the mediation. The mediator will be selected by agreement of the parties and their attorneys, or if they are unable to agree, by the judge from a list of approved mediators maintained by the District Court Office. The parties pay the mediator. The parties and their attorneys must attend a mediation session to try to resolve the financial issues between them before the matter will be scheduled for trial. If an agreement is reached in mediation, one of the attorneys will draft a consent order, which is signed by all parties, their lawyers and the judge. That agreement is then entered as an order of the court and the marital property and debts are then divided as agreed. An equitable distribution trial will be scheduled, if you are unable to reach an agreement in mediation.

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