What Is Mediation?

A mediator serves as a neutral party between litigants to facilitate discussions, negotiations and resolution of disputes, and to guide parties and their attorneys to reach a fair settlement for each party within the boundaries of applicable law. While the mediator brings experiences, alternative ideas, suggestions and guidance to the settlement process, the mediator is not a judge, legal advisor or decision maker. The ultimate settlement is left with the parties involved under the guidance of their lawyers.

When litigants, aided by their attorneys, wish to settle disputes without a trial, a mediator offers distinct advantages:

• Mediation allows the parties involved to maintain control over disputes and issues, versus ceding that control to a judge
• Parties often know what is best for them and in family law cases, their children
• Mediation settlements allow parties to select alternative resolutions outside legal constraints and without the stress of the courtroom
• Because each party has had a voice in reaching their joint settlement, mediations are often more successful in avoiding future conflicts
• Mediation is more cost-effective than a trial and takes far less time to complete

During mediation, each party is entitled to make opening statements through their attorneys in a joint session and is entitled to ask questions of the mediator about the process. As long as the discussion is proceeding toward settlement, the joint sessions continue. If the joint sessions are no longer proceeding toward settlement, or either party is uncomfortable in further joint sessions, mediations then break into separate meetings where each party sets forth, privately to the mediator, positions and proposals for settlement. Proposals are exchanged, revised and exchanged again until there is a resolution. When a settlement is reached, it is outlined and signed by the parties and their attorneys. Then more formal, written settlement documents and orders are prepared by the parties’ attorneys. If the parties cannot reach an agreement, the mediator may declare an impasse which terminates the mediation, and the parties may choose to arbitrate their remaining disputes or to proceed to court.

What Is Arbitration?

If mediation is not successful, arbitration provides an alternative out-of-court dispute resolution process in lieu of a court trial. Unlike mediation where the mediator acts as a neutral guide to both parties, the arbitrator is the final decision-maker in settling disputes and issues.

Advantages of arbitration include:

• Unlike court trials, arbitration is private, confidential and more cost-effective
• Because arbitration is conducted in an office instead of a courtroom, the arbitration is more relaxed, more informal and less stressful
• Arbitrations usually proceed until concluded, unlike trials which often start and stop or are rescheduled for months at a time
• Unlike trial decisions which may take months to be written, arbitration decisions must be written and provided to both parties within 30 days of the close of evidence

After an arbitrator has been selected, the parties and their attorneys determine a schedule with the arbitrator, setting the schedule to go as quickly or as slowly as the parties elect. After listening to the evidence and statements of both parties and the arguments of the parties’ attorneys, the arbitrator renders a decision based upon the applicable law governing the issues of the dispute.

As a former North Carolina District Court Judge and an experienced family law attorney, Mr. Hicks offers mediation and arbitration services to quickly and fairly resolve legal disputed with a long career addressing family law issues.