Mediation has evolved as one of the most effective ways of settling disputes outside of court. Mediation is conducted by a neutral third party, known as a mediator, who works with the parties to facilitate communications, promote understanding, and explore settlement possibilities. Most mediators are attorneys who have received special training in conflict resolution techniques.
Under North Carolina law, parties to certain legal actions filed in Superior Court and District Court may be required to participate in mediation before a judge will schedule the matter for trial. However, parties can choose to participate in mediation before a lawsuit is filed.
Mediation is appropriate and can be successful in a variety of matters including, but not limited to, the following:
- child custody;
- child support;
- postseparation support and alimony;
- equitable distribution (division of marital property and debts);
- alienation of affection and/or criminal conversation;
- personal injury;
- wrongful death;
- business and employment related disputes;
- contract disputes;
- real property issues, such as boundary line disputes; and
- estate related matters including contesting of a will.
In a mediation session, the mediator often begins by meeting with the parties together or separately (depending on their preferences), laying out the ground rules, describing the process and answering questions in an introductory session. There are rules regarding confidentiality that will be explained. After the mediator’s introductory remarks, the parties or their attorneys outline the legal and factual issues in the case. Often, the parties will be separated into different meeting areas for private meetings between the mediator and each party. This allows each party the opportunity to speak candidly to the mediator regarding his or her views and concerns. The mediator will normally go back and forth between the parties with attention on clarifying communication, translating proposals, and assisting the parties in understanding their common interest in settling their dispute. In a high percentage of cases, mediation is successful and the parties are able to reach an agreement of the issues in dispute.
Due to current ethical rules and restrictions, if neither party is represented by an attorney at mediation, then the mediator cannot prepare a formal agreement of the terms of the settlement. However, under these circumstances, the mediator can prepare an informal summary of the parties’ agreement so that either party can have their attorney prepare a formal written agreement or a court order, whichever is most appropriate. If only one party has an attorney present at the mediation, then that attorney may prepare a settlement agreement or court order detailing the terms of the settlement, but there is a certain protocol that must be followed to ensure, among other things, that the party not represented by legal counsel fully understands the terms of the agreement and is signing it voluntarily.
There are many advantages to mediation. Economically, mediation is generally less expensive when contrasted to the expense of going to trial or other forms of conflict resolution. Parties who participate in negotiating a settlement have more control over the outcome of their case than those who rely on a judge or jury to make a decision for them. Research has consistently shown that parties are more satisfied in the long-term with decisions in which they have been involved in as opposed to decisions imposed upon them by a third party decision maker. Also, mediated disputes may address issues beyond those which may be resolved in a courtroom process where a judge is bound by certain legal restrictions.
Disputes which occur within the context of family relationships can be some of the most emotionally charged. A mediated settlement that addresses all the parties’ interests can often preserve a relationship in ways that would not be possible in a high conflict win or lose decision making procedure. Mediation can also make the termination of a relationship more amicable.
Unlike judicial resolution of conflict, mediation can assist parties in attending to the fine details of implementation. Negotiated or mediated agreements can include specifically tailored procedures for how the decisions will be carried out. This fact often enhances the likelihood that parties will actually comply with the terms of their settlement.
Finally, it appears that mediated settlements tend to hold up over time and, if later disputes develop, the parties are more likely to utilize a cooperative form of problem solving to resolve their differences than to use an adversarial approach. At Gary Cash Mediation, Inc., Retired Judge Gary Cash serves as the sole mediator. Judge Cash has been certified by the North Carolina Dispute Resolution Commission to conduct mediations in Superior Court civil cases, District Court family financial cases, and in certain matters before the Clerks of Superior Court. In addition, his many years of experience on the bench have provided him with a deep understanding of the complex issues and disputes that individuals struggle with in a variety of situations, significant knowledge of what the potential and preferable solutions to those differences are, and a great respect for the rights of individuals to differ and to be heard. Judge Cash conducts mediations at his office located in Asheville, North Carolina, but he is available to serve other areas throughout North Carolina, particularly Western North Carolina including Waynesville, Brevard, Hendersonville, Sylva, Marion, Marshall, Burnsville, Spruce Pine, and Boone.
If you are interested in scheduling a mediation, please use the online calendar to view dates that Judge Cash is available. Click on the date that you would like to schedule your mediation and then complete the Online Appointment Request form to initiate the scheduling process.