Mediation and arbitration are two common forms of alternative dispute resolution used in North Carolina family law as an alternative to a civil trial before a judge. Civil trials often involve substantial delay and overwhelming litigation expense and under most circumstances, if both parties are represented by qualified family law specialists, with the assistance of an able and well trained mediator, the dispute should be settled. Unlike an arbitrator, the mediator does not assume the role of a trial judge. The mediator’s responsibility is to assist the parties and their attorneys at arriving at a fair and equitable settlement.
In North Carolina, mediation is required in child custody disputes as well as equitable distribution cases but it can also be used in other disputes regarding alimony or child support. There are certain circumstances in which the trial judge may waive the requirement that the parties attend mediation, but often the judges will insist that mediation be attempted prior to proceeding to trial. Normally, a mediator is selected by the parties or appointed by the court. The mediator is paid for by the parties and it is normal for each party to pay one-half of the mediator’s charge at the conclusion of the mediation session. Most often, the parties execute a contract with the mediator prior to the mediation.
The best thing about mediation is that it allows the parties to maintain control over the outcome of their case. If the parties choose to go to trial, a third party judge has the exclusive decision-making authority which can only be appealed at substantial additional expenses to both parties. Normally, a mediated settlement is much less expensive than a trial and the mediation process is much less formal than an actual trial. The parties and their attorneys are in control of scheduling which often allows the entire process to be expedited. Lastly, a mediated settlement can be kept confidential as opposed to a public trial.
Another alternative to a public trial is arbitration. In arbitration, the parties hire a third party family law specialist to conduct a private trial pursuant to the North Carolina Family Law Arbitration Act. The parties and attorneys can control the scheduling of the arbitration and the arbitration can be private.
The parties can agree to arbitrate their dispute either before or after a legal action is filed. Arbitration awards are often confirmed by the court so that they are fully enforceable just like a regular court order.
Our Firm has both certified mediators and arbitrators.