Mediation and arbitration

Alternative Dispute Resolution (ADR) encompasses various methods of resolving legal issues without resorting to traditional litigation (i.e., court). These methods are usually more cost effective, expeditious, less adversarial, and often times yield better results because the parties have more control over the process. Mediation and arbitration are two types of ADR.

Mediation

Mediation is a dispute resolution process in which a neutral third party, the mediator, assists the parties in trying to reach an agreement. Often times a mediator is an attorney who has extensive experience in family law and who has received special training in mediation.

The mediator does not advocate for either party. The mediator’s job is to help parties work out their own agreements by leading the disputants through a structured discussion process, by exploring the parties’ needs and interests, and by helping them formulate specific solutions to resolve the disputed issues. The parties can agree on a mediator and each party’s attorney can be present during the mediation if the parties wish. In Wake County, parties who have filed claims for equitable distribution in the courts are required to attend mediation or some other form of dispute resolution.

The process of mediation is unique and flexible. The parties can meet with the mediator together, or, if emotions are high, as is typically the case in family law matters, the mediator can meet with each party in private, what is known as “private caucuses” and then communicate back and forth between the parties.

The mediator does not make any decisions in the case. The decision-making authority is left to the parties. That is one of the most attractive reasons for mediation — the parties maintain control of the process. This doesn’t mean that each party won’t have to make concessions, but if the parties do reach an agreement, it will be their own settlement, rather than a decision imposed upon them by a judge.

After working with the parties, if the mediator believes that the parties simply cannot resolve their disputes, then the mediator will call an “impasse” and the mediation ends. At that point, the parties can continue with the case either through litigation or arbitration.

Linda Ward is certified by the North Carolina Dispute Resolution Commission as a Family Financial Mediator and has extensive experience representing parties in mediation and serving as a mediator. The cost for Linda Ward to conduct a mediation is $200.00 per hour. Ms. Ward also requires payment of a one-time administrative fee of $150.00. Usually, but not always, the parties agree that they will share equally in the cost of mediation. Ms. Ward usually requires an initial deposit to conduct the mediation, of which each party typically pays one-half.

• What are the benefits of mediation?
Mediation is less expensive than litigation, puts the decision-making in the hands of the parties and can be a productive means to resolve a dispute when attorney negotiations are getting you nowhere.

• What issues can be mediated?
Equitable distribution (the division of property and debt), custody and visitation, child support, and spousal support are all issues that can be addressed in mediation.

• Why should I participate in mediation if it is not binding?
Although no party is required to reach an agreement in mediation, if an agreement can be reached it often saves both parties the expense and time that is required for a trial. At the same time, mediation gives each party the opportunity to address the matters that are most important to them and to reach decisions based on what they believe to be in their own (or their children’s) best interests. Additionally, parties are sometimes able to reach decisions on part of the issues through mediation, which can narrow the matters to be tried by a judge. This can save thousands of dollars in attorney’s fees.

• How long does a mediation session last?
The amount of time varies depending on the progress being made at the mediation, the complexity of the issues in dispute, along with many other factors that make the duration of mediation very difficult to predict.

• Do I have to have an attorney to participate in mediation?
No. However, it is important to understand that the mediator cannot give either party legal advice. It is very important either to have your attorney present at the mediation or review any agreements from mediation with your attorney prior to finalizing the agreement. During the mediation process, your attorney can advise you of your legal rights, discuss with you what settlement options are in your best interest, help you strategize on ways to negotiate or reach the settlement that you want.

• I am not sure if I should participate in mediation. How do I know if mediation is right for my case?
Mediation is not a panacea, and will not work in every case. However, most cases can be resolved in mediation if both parties have reasonable expectations and are willing to make some concessions in order to resolve the case. It is best to discuss your concerns about mediation with an attorney who can help you decide if mediation is appropriate in your case.

Visit the N.C. Dispute Resolution Commission online or call 919.890.1415 to learn more about mediation in North Carolina.

Arbitration

Arbitration is the alternative dispute resolution process that is most similar to formal litigation. It can be thought of as a “private trial” where the attorneys for each side are able to choose the arbitrator, the rules of procedure for the arbitration, how evidence will be presented (i.e., by affidavit, live testimony, documentary evidence), and the date of the arbitration.

Preparation for an arbitration is similar to preparing for a trial in that witnesses may be called to the arbitration, motions may be filed, and depositions may be taken. Typically, parties will testify at the arbitration proceeding. At the conclusion of the arbitration, the arbitrator issues a written award. Unless the parties agree otherwise, this award can be incorporated into a court order so that the parties will have the ability to enforce the arbitrator’s award as an enforceable court order.

Typically, the arbitrator is an attorney who has extensive experience in family law who acts as a judge. Although the parties must pay the arbitrator for his/her time, which, depending on the arbitrator, can easily range from $200.00 to $300.00 per hour, in a good number of cases arbitration can be the most efficient and most cost-effective way to resolve a case if the parties are simply unable to reach an agreement between themselves.

For example, in traditional litigation it is not uncommon for parties to wait a year or more before their claims are heard. Or even more frustrating is when the parties’ claims are scheduled for hearing, but the judge’s docket is full and the judge simply does not have the time to hear the case during the session of court the case is scheduled to be heard. The parties are then “bumped” from the docket and forced to reschedule their case three to six months down the road. Each time a case is not reached during a session of court, or is “bumped” from the court docket by other cases, it costs the parties’ time and attorney’s fees. For this reason alone, arbitration is often both a cost-effective and time-effective alternative for litigating issues in dispute. Additionally, you can select your judge in arbitration, select where the arbitration will take place and choose who can attend. In the traditional litigation system, you have no control over this.

Linda Ward has extensive experience representing parties in arbitration. Ms. Ward is also available to serve as an arbitrator. The cost for Linda Ward to serve as an arbitrator is $200.00 per hour. Ms. Ward also requires payment of a one-time administrative fee of $150.00. Usually, but not always, the parties agree that they will share equally in the cost of arbitration. Ms. Ward usually requires an initial deposit to conduct the arbitration.