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Avoiding Court: Mediation and Arbitration


Negotiation | Mediation | Arbitration


There are three ways to resolve your case outside of a traditional courtroom. Two of the ways lead to the parties reaching an agreement, or settlement. This can be done through negotiation and/or mediation. If the parties are unable to reach an agreement through negotiation or mediation and need a third party to make a decision, then the parties may voluntarily attend arbitration.

Negotiation

Negotiation is the process of the parties or the attorneys for each party discussing the issues and exchanging settlement offers in an attempt to reach an overall settlement agreement. Negotiation can be formal and informal. The attorneys usually discuss the case and address their client's goals with the other attorney and exchange written communication. They may also make formal settlement proposals and await a counteroffer from the other attorney.

Mediation

Mediation can be an extraordinarily effective process in resolving issues surrounding separation in divorce. In mediation, a mediator who has experience as an advocate representing family law clients, assists the parties and their attorneys in reaching an agreement. In Wake County, it is customary for the parties to be in separate rooms during the mediation and for the mediator to facilitate the discussion between the rooms. Often, with an impartial "bird's eye view" of both parties' interests and goals, the mediator can assist the parties in reaching an agreement.

The advantage of mediation is that you remain in control of the outcome. The mediator does not have any decision-making authority. At the end of the mediation, if you have not reached an agreement, a decision will not be imposed upon you. You will still have the ability to take your claims before a court. The content of your settlement offers and discussions at mediation are not admissible in court. Mediation often lasts an entire day. It is a long day, but if you reach a settlement, then you have likely saved yourself significant attorney's fees that come with litigating the case in court. There is also significant emotional value in reaching a solution to which you agreed and focusing on moving forward in your life.

Arbitration

Arbitration is the most similar to a courtroom. Arbitration is like a "private trial" in that you are still asking a third party to make a decision after you have presented evidence and made arguments. The advantage of arbitration is that the two attorneys typically agree upon an arbitrator who they believe will be best equipped to make the decision in your case. Arbitrators are typically attorneys who have practiced for many years and have significant experience in family law. The advantage of arbitration is that it is a faster process than the traditional courtroom. The dockets in Wake County Family Court are long and it can often take months or even longer to have all of your issues decided by a judge. While you must pay the arbitrator for his or her time, arbitration is often more cost-effective due to the attorney's fees saved with the ease of scheduling hearings with the arbitrator versus scheduling them in a traditional courtroom.