Mediation is usually voluntary and is a confidential process where a neutral third party (i.e. the mediator) helps people in conflict reach a mutually acceptable agreement. Mediation is not about deciding who is right and who is wrong, it is about finding common ground that allows individuals to put the past in the past and focus on the future.The mediator does not, will not, and cannot legally take sides or make decisions on behalf of the individuals in the mediation.
The role of the mediator is to guide and facilitate negotiations.
The mediation will keep conversations constructive and ensure everyone is heard. Like Vegas, what is said in mediation, stays in mediation – with few exceptions (mostly related to criminal activity). This encourages open discussion and honesty during negotiations. While the mediator cannot bind the individuals in the conflict to confidentiality, if the matter is not resolved in mediation, the parties cannot use what was said in mediation to persuade a Judge to agree with their position or argument in a contested courtroom hearing or trial.
All mediations can be done voluntarily; however, some mediations, when mandated by state law, are required before a case can go to trial. In the family law space, all matters related to the property distribution are required to go through some sort of alternative dispute resolution before they come to trial. Most individuals will choose mediation. Also, in North Carolina, child custody matters must go through court-ordered mediation which is generally by state appointed mediators. However, all family law matters can be submitted to a privately selected mediator during one mediation session.
Submitting all existing family law issues into one mediation session is generally preferred because everything related to the family is intertwined. If you have children, many parents would not want to talk about parenting arrangements without also discussion child support. If you have property to divide, you probably also want to talk about any spousal support and ongoing financial obligations as well.
Mediated Agreements sometimes can be legally binding; however, in the family law context, settlements reached in mediation must be codified in a more formal, legal document.
Right now, in North Carolina, mediators are not allowed to draft the formal legally-binding documents but the mediator can create a memorandum of understanding between the parties that is then used by an attorney for one party to draft a formal document.
Mediation helps uncover underlying needs and interests – those things people really care about, rather than just arguing about fixed positions – those things people say they want. In most situations, mediation is much more cost effective and quicker than protracted litigation. Mediation allows the parties to control the outcome rather than being told by a Judge how things are going to work. More importantly, the mediation process itself is specifically designed to reduce hostility and promote understanding – an ideal process for situations where relationships matter most – like your family.
If you or somebody you know is headed toward Mediation to resolve their family law disputes, our Mediation team at Modern Legal is here to help.
Please note: these educational materials are based on North Carolina law where my mediation and legal practice is based. While the insights may have wide applicability, readers should consult with an attorney or mediator regarding the specific laws in their state or country.
Written by: Mediator Deborah L. Dilman