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No Way in Hell: Mediation Is About Settlement

It seems that one experienced lawyer in Wilmington that we often have cases with frequently calls the day before a scheduled mediation to ask if he can switch the location of the mediation from the neutral mediator’s office to his office and my response is always the same: “No Way in Hell.”

In most counties of North Carolina in which we practice, mediation is required for cases that involve equitable distribution.  Mediation is a form of alternative dispute resolution (ADR) that offers a method for parties to negotiate a settlement.  A trained (and often certified) mediator assists the parties in settling their legal issue by acting as a third party neutral and suggesting ways in which the parties might creatively settle their case.

Mediation works best when it is structured because the structure adds an element that ordinary negotiation lacks.  One of the important components of that structure is meeting at a neutral location so that each party does not feel that the other is advantaged by being at the other lawyer’s office.

In North Carolina, what is said at mediation is usually confidential and cannot be used in a subsequent court proceeding.  If a settlement is reached, it is generally enforceable by the Courts and concludes the dispute.  In our practice, nearly 90% of our clients settle their equitable distribution cases at mediation.  The success rate on issues like child custody are often closer to 50% as issues such as these are harder to resolve and more open to interpretation.

At 4:59 p.m. yesterday, we received yet another call asking to change the location of the mediation.  Not only do I generally object but this particular mediator always has free food.  So again, as to changing the location, I say “No Way in Hell!”

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