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Rice Law Blog

Mediation Resolves Disputes Out of Court

Mediation

Mediation is a private, confidential process to resolve disputes.  Individuals who are undergoing a divorce can resolve issues using a neutral third party.  This normally includes the division of property, alimony and child custody.  However, it can include all issues of the marriage including child support.

Types of Mediation

Child Custody Mediation

In counties that have a child custody mediation program, parents must attend a Custody Mediation Orientation Program and Parent Education Orientation Program.  The orientation and education program praises the benefits of mediation.  It also encourages families to resolve their own dispute rather than put the dispute in the hands of a judge.

After the orientation and education program, a separate child custody mediation occurs with a professional mediator trained and employed by the State.  Parents attend child custody mediation without their attorneys and the mediator is not generally an attorney.  Child custody mediation usually occurs first before family financial mediation.

Parents attend the orientation and education program only once. They attend and participate in Custody Mediation each time a party asks for a change in custody or visitation.

Family Financial Mediation

Married persons going through a divorce are required to attend mediation in an attempt to divide marital property as part of equitable distribution and resolve claims for alimony.  Family law attorneys call this mediation a “family financial mediation.”  The parties and their attorneys attend and a professional mediator who is also an attorney leads the mediation.  The Family Court Coordinator sets a mediation deadline of 150 days after filing the equitable distribution claim.  The parties agree upon a mediator if possible.  The Court appoints a mediator when the parties do not agree.  Some mediators are certified as having completed a special course of education and practical training while others are not.

Private Mediation

Parties hire a private mediator to address all family law issues to bypass by the normal process of handling child custody mediation separately from family financial mediation.  There are many advantages of a private mediator including that:

  • handles all issues
  • the private mediator is often an attorney
  • the attorney’s for both parties attend and advise their clients
  • a document is signed that fully resolves all issues upon settlement.

Role of the Mediator

The role of the mediator is to guide a conversation between the parties, allow them to exchange information, challenge them on their positions and push them toward settlement.  The mediator is not a judge.  The mediator is not an arbitrator.  Professional mediators guard against bias for or against clients due to the clients’ backgrounds, personalities, or conduct during mediation. The mediator can’t provide legal advice and can’t take sides.

In my opinion, a mediator really can’t prepare a legal document for the parties to sign without violating the requirement to be neutral.  Despite this, under the North Carolina custody mediation program, the child custody mediator types up a Parenting Agreement and sends it to the parties and their attorneys.  These agreements often do not include the level of specificity that most lawyers would require.  The Family Financial Mediator generally does not pen an agreement for the parties but relies on the attorneys to do so.

The mediator cannot testify in your case.  Mediation is generally confidential and will not be released to the Judge for your case.

Role of the Lawyer at Mediation

Your lawyer’s role at mediation is to be prepared with facts and documents for use in the mediation, advocate for you by helping the mediator understand your legal position and why it is supported by fact and law, and advise you on settlement options and what he/she believes to be in your best interests.  We prepare a settlement document during the mediation process so that when settlement is reached it can be signed by everyone for a final settlement.

Advantages of Mediation

Child Custody Mediation Advantages

Researchers found that child custody mediation has the following benefits:

  • Increases parents’ chances of settlement without a trial even when the parents do not initially settle at the mediation;
  • Improves co-parenting communication
  • Empowers parents to identify and promote their children’s best interests
  • Reduces the emotional toll on families in litigation
  • Lowers the associated financial costs to all involved
  • Makes it less likely that a party will appeal and eliminates the associated costs of appeal

See Best Practices for Custody Mediation (2014).

Family Financial Mediation Advantages

  • You have the opportunity to be creative and implement settlement strategies that a Judge cannot employ
  • Mediation relieves the uncertainty of trial and allows you to know and decide your own result
  • There is a greater likelihood that you can preserve goodwill between you and your spouse
  • Reduces the associated financial costs of trial
  • Reduces the likelihood of appeal and the associated costs
  • Allows you to learn more about the opposing party’s position and better prepare for trial

Costs of Mediation

The state provides the professional child custody mediator at no charge.  Family Financial Mediators charge different amounts usually ranging from $150 per hour to $200 per hour.  A “setup fee” is often assessed which is generally split equally between the parties.  Your lawyer will also charge their fee.

When Mediation is Not Appropriate

Sometimes mediation may not be appropriate for the parties.  Mediation may not be appropriate if you have serious concerns for your safety or the safety of your children.  A deputy can be present or other safeguards put in place to ensure an appropriate environment for mediation even in these situations.  Your attorney can file a motion to waive mediation and go directly to court in some cases.

Questions?

If you have questions about mediation, contact us.