Common Mediation Questions
What Is the Difference between Mediation and Arbitration?
The primary distinction between mediation and arbitration is that, in mediation, the mediator works with the parties to help them reach an agreement regarding the issues in dispute, whereas in arbitration, the arbitrator makes a decision for the parties after each party has had the opportunity to present their side of the case. How Do I Start the Mediation Process?
If You Are Represented by an Attorney:
If you are represented by an attorney, you can let your attorney know that you would like to participate in mediation as a means to try to resolve your legal dispute outside of court. Your attorney will help you with the rest of the process.
If You Are Not Represented by an Attorney:
If mediation has not been ordered by the court and you are not represented by an attorney but would like to attempt to resolve your legal dispute through mediation, both you and the opposing party (or parties) must agree to participate. If mediation has been ordered by the court, the court’s order will specify the name of the mediator that the parties agreed to, or the mediator who was appointed by the court.
If you and the opposing party have agreed to try to resolve your differences through mediation prior to or in the absence of a court order, you can start the process by (1) selecting a mediator, and (2) contacting the mediator to schedule a date that is mutually convenient for you, the opposing party, and the mediator.
It is important to identify the specific issues that you would like to have mediated. If your case is a Superior Court matter, it is often helpful to provide the mediator with copies of any legal pleadings (such as the complaint and answer, etc.) in advance of the mediation. For Family Court matters, the mediator can only review documents or talk to parties about the issues in advance of the mediation conference if both parties or attorneys consent. If you are not represented by an attorney and you need clarification of this, please feel free to ask if providing documents is appropriate.
How Much Does Mediation Cost?
A one-time administrative/reservation fee of $175 plus an hourly rate for the time spent in mediation. The parties may incur additional costs if a summary of the mediation is required. Unless the mediation is court ordered for pro-se (self-represented) matters, the hourly rate for mediation will vary depending on the nature and scope of the matter in dispute. Typically, each party is responsible for paying one-half of the mediator’s charges. However, one party may agree to pay all of the costs of the mediation. For more information about payment of mediation fees, please see our article “How much will mediation cost?”
At What Point in the Dispute Should Parties Participate in Mediation?
Mediation can take place before or after a lawsuit has been filed. In certain North Carolina legal matters, such as child custody disputes and equitable distribution actions, mediation is mandatory. In other words, the parties normally must participate in mediation before a judge will conduct a trial to hear the matter. When mediation is required by law, a judge may waive the requirement to attend mediation, but only in limited circumstances.
How Long Does Mediation Take?
The length of the mediation will likely depend on the number of issues in dispute as well as the level of tension and conflict between the parties. Many cases are resolved in one mediation session. Some mediation sessions may take a few hours while others will last the entire day. Still, some parties elect to reserve two days with the mediator to ensure ample time to address all issues when cases are especially complex or contentious. It is not unusual for pro se litigants to set 3 or 4 two-hour sessions instead of one day-long session. We are happy to facilitate whatever schedule is best for your matter and most likely to result in resolution of your issues in dispute.
Can the Mediator Give Legal Advice?
No. Ethical restrictions prevent a mediator from giving legal advice to either party. The mediator acts in a neutral capacity. Since the parties have competing interests, it is improper for a mediator to give legal advice. A mediator may, consistent with his/her training and experience, tell you his/her opinion as to what the law is with regard to a particular matter. This is one advantage to choosing a mediator who is an experienced lawyer.
Do I Have To Have an Attorney Present at the Mediation?
No, it is not required that you have an attorney present at the mediation, though you may if you desire. Even if you attend mediation without an attorney, you are welcome to consult with one before, during, and after the mediation conference. Mediation conferences can be held at any stage of a disagreement, even before your dispute becomes a lawsuit. Oftentimes, lawyers will refer their pre-litigation clients to a mediator to see if a matter can be settled without the necessity of a court case.
In the event you participate in mediation without an attorney and settlement is reached at mediation, it is recommended that you consult an attorney before signing any legally significant documents.
Can a Mediator Make a Decision for Me?
No. A mediator cannot make a decision for you or impose a decision on you. The mediator’s role is to help you and the opposing party reach a mutual agreement by weighing the benefits and risks of the options being proposed by all sides.
What Happens When My Case Is Settled at Mediation?
If either you or the opposing party is represented by an attorney, then the attorney can prepare a legal document, either a legally binding contract or a consent order, memorializing the terms of your agreement. A consent order is an agreement of the parties that the court approves and adopts as an order of the court.
If neither you nor the opposing party is represented by an attorney at the mediation, then your mediator will typically prepare a summary of the mediation setting forth the terms of your agreement so that either you or the opposing party can have an attorney prepare a legally binding contract or consent order that sets forth the terms of your settlement. Ethical restrictions prevent the mediator from preparing a legally binding document for the parties. This restriction is due, in part, to ensure fairness to both parties since they have competing interests and the mediator cannot give them legal advice on the possible implications or ramifications of their settlement.
