Mediation is a conflict resolution process in which an impartial third party assists the clients in negotiating a consensual and informed settlement. The ultimate decision making authority rests with each party and it is the role of the mediator to explore alternatives and address their interests. In this way, mediation differs from litigation, an adversarial procedure, or an arbitration. This forum is not the place to air such grievances and issues you may have with one another which have given rise to your separation and mediation is not a substitute for counseling or individual therapy.
In a mediation, you must be able to listen to one another’s position with an open mind and in good faith. Each party must make a full and fair disclosure of all information which may be necessary to accurately and fairly evaluate the facts and information on which to base a settlement of the issues between them.
A mediator must remain neutral and impartial throughout the mediation process. In most mediations, however, each party is present with the party’s attorney, usually in a room separate from the opposing party. The mediator moves back and forth between each party’s room, providing information and helping to craft an agreement. Because of the mediator’s skill as an attorney, and in order to have an enforceable agreement when the parties walk out the door, most mediation clients request the attorney mediator to draft a document stating the terms reached in the mediation, however, in so doing, the mediator is not acting as an advocate for either party. Each party has the advice of independent counsel and the party’s attorney will review any documents prepared prior to the execution of the same. In addition, the parties may agree that a more formal document will be drafted to reflect the terms of the mediated settlement signed at the mediation.
The purpose of this mediation is to assist clients in reaching a voluntary settlement of issues in your separation. A mediator cannot force you into an agreement or bind you by any decision. Although you may participate in good faith and use your best efforts to resolve your issues, you may not be able to reach a successful resolution of any or all issues. Even if a total resolution is not possible, you have the option of reaching a partial resolution. It is, also, possible to agree to submit any unresolved issues to an arbitrator for resolution. An arbitrator will act like a private judge and will be able to take testimony and review evidence presented just as a judge would do in court. Similarly, the decision of the arbitrator is final and is not open to negotiation. The arbitration decision can be made into an order of the court in some instances.
In order to create an atmosphere of open and honest communication, all written and oral communications made in the course of this mediation are confidential. All offers to compromise and all statements made with regard to an offer to compromise by the mediator, either party or their attorneys during the mediation are deemed inadmissable as evidence pursuant to Rule 408 of the North Carolina Rules of Evidence.
Either party has the right to withdraw from the mediation at any time for any reason. The mediator can withdraw from the mediation or terminate or suspend the procedure before an agreement has been reached if, in the opinion of the mediator:
- Either party uses manipulation or intimidation as a tool in the mediation or attempts to take unfair advantage of the other.
- Either party fails or refuses to provide honest answers, or to provide complete and honest information regarding assets, liabilities, income or expenses.
- The mediator believes that either party is incapable or unwilling to participate in informed negotiation either on a temporary or permanent basis.
- The mediator believes the parties have reached a final impasse and that further meetings would be unproductive or would not be worth the time and expense.
If a court action is filed, parties will be required to attend court ordered mediation for child custody matters and family financial mediation to try to work out an agreement regarding property distribution. Many times parties elect to have the mediator consider all pending issues in the case including custody, support, and alimony issues, but the parties are not required to do so.