Mediation is a process by which an impartial third party, the mediator, facilitates communication between parties, without judging the merits of their case, so as to promote mutual understanding and a potential settlement of their dispute. It is an attempt to create the best possible circumstances for resolution of the parties’ issues.
In North Carolina, the law provides that civil cases pending in Superior Court and that family financial cases (equitable distribution, alimony and child support cases) pending in District Court may be ordered to mediation by an appropriate administrative judge. In addition, mediation is often used to resolve disputes before they become lawsuits in a variety of situations such as those involving issues of child custody, child support, divorce, personal injury, business, contracts, school issues, neighborhood disputes, etc. What is mediation, and why choose it?
In a mediation session, often the mediator first meets with the parties and any other persons necessary to settle the case, lays out the ground rules, describes the process and answers questions in an introductory joint session. There are rules regarding confidentiality that will be explained. After the mediator’s introductory remarks, the parties or their attorneys often 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 a party so that a party can speak candidly regarding his or her views. The mediator will normally go back and forth between the parties and their attorneys 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, an agreement is reached and the mediator will assist the parties in reducing that agreement to writing.
Economically, mediation is generally less expensive when contrasted to the expense of litigation or other forms of conflict resolution. Parties appear to generally be more satisfied with solutions that have been mutually agreed upon as opposed to solutions that are imposed by a third party decision maker. Also, mediated disputes often resolve issues beyond those which may be resolved in a courtroom process where a judge is bound by legal restrictions.
Most importantly, parties who negotiate their own settlements have more control over the outcome of their disputes and often feel more empowered than those who use other persons to make their decisions for them.
Many disputes which occur in the context of relationships will be ones that will continue over future years. A mediated settlement that addresses all the parties’ interests can often preserve a working 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 does appear that mediated settlements tend to hold up over time and, if later disputes result, the parties are more likely to utilize a cooperative form of problem solving to resolve their differences than they are to use an adversarial approach.