Traditionally, when someone filed a lawsuit the parties would almost always sort out their differences in open court. While litigation and jury trials still play a vital role in American jurisprudence, there are several types of alternative dispute resolution which are being used to resolve conflicts.
One such method of alternative dispute resolution is mediation. Since 1995, North Carolina has made mediation (i.e., mediated settlement conferences) mandatory in all Superior Court actions.
Mediation is different from other forms of alternative dispute resolution. Mediation conferences are not hearings or trials to determine who wins or loses, but rather mediation is designed to facilitate discussions during which the parties search for mutually acceptable solutions to their conflict. Although mediation is less formal than a trial, it is still a legal proceeding guided by rules adopted by the North Carolina Supreme Court and the North Carolina Dispute Resolution Commission.
Some of the benefits of mediation include the following:
Mediation begins by the Mediator meeting with all parties in an open session and explaining the ground rules for discussions. The Mediator typically allows the attorneys for each side to describe the case from their respective points of view. The Mediator will then begin the negotiation process. At some point during the conference, the Mediator will probably conduct a “caucus” which is when the Mediator meets with the parties separately. This provides an opportunity for the Mediator to speak frankly with the parties and it gives the parties an opportunity to share information with the Mediator that they may not be comfortable sharing in open session.
The Mediator’s ultimate goal is to help the parties resolve the dispute for themselves. Unlike a judge or jury, a mediator does not make decisions for the parties. In an effort to help facilitate an agreement, the Mediator will work to open channels of communication, to inject reason into the discussion, and to help each side see the dispute through the eyes of the other. The Mediator will also explore with each side the strengths and weaknesses of their case, discuss the benefits of settling, suggest options for the parties to consider, and carry offers and counteroffers between the parties. If the parties reach an agreement or settlement, their terms will be put in writing and signed by the parties and their attorneys. This will allow the pending court case to be dismissed.
The mediation costs are split between the parties unless agreed otherwise agreed upon. The parties can either mutually select a mediator or the court will appoint one. Mediators are required to be certified by the North Carolina Dispute Resolution Commission. All certified mediators have completed at least 40 hours of mediation training and have met the other educational and training requirements necessary for certification.
By John Crotts, A Certified Superior Court Mediator, NCDRC