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