How Does Mediation Work? What To Expect
When clients consider the role of an attorney, they often envision legendary trial lawyers – both real and fictitious (think Gerry Spence, Perry Mason, or the beloved Atticus Finch) – whose eloquent arguments captivate jurors and spectators. The reality, though, is that substantially more cases are resolved through settlement discussions than by feats of legal prowess. In fact, alternative methods of dispute resolution are on the rise throughout North Carolina.
Mediation – by both court order and parties’ election – is one such method. In short, mediation is an informal dispute resolution process that encourages parties to reach a settlement agreement by engaging a neutral third party.
In North Carolina, mediations are governed by statute – specifically, the rules for mediated settlement conferences in General Statute 7A-38.1, as well as each court’s local rules. In tandem with the local rules, the statute sets forth ground rules like how to select a mediator, the timing of mediation, attendance requirements, and fees, as well as mediator duties and confidentiality requirements.
Generally, mediators are attorneys who are trained in alternative methods of dispute resolution. They may be appointed by the court or agreed upon by the parties. The senior resident superior court judge of an applicable district may order mediation for a given case or, through a local rule, may order all cases to mediation. Unlike a judge or jury who issues an order or a verdict, a mediator simply facilitates a productive discussion between the parties by walking them through their legal and factual issues.
It behooves parties to consider the benefits of resolving (or attempting to resolve) a case through mediation. Not only can it save valuable money and time, but it is inherently less antagonistic and affords parties more creativity and autonomy in fashioning solutions to their legal disputes.
To decide whether your case is a candidate for resolution through mediation, it’s important to understand the process. Here is an overview of what you can expect at mediation.
The Mediation Process in North Carolina
The Very First Step: Designating the Mediator
The critical first step in any civil case is to agree upon a mediator – typically, an experienced trial attorney who is not affiliated with the case in any way. Again, if the parties cannot agree upon a mediator, the Superior Court will appoint one. The local rules in many counties allow parties to correspond at length about their preference of a mediator. If the opposing party acts unreasonably in the designation process, take this as a warning: He or she may act similarly unreasonably during the mediation as well, so it is best to temper your expectations early.
Scheduling the Mediation
Once they have selected a mediator (or one has been appointed), the parties will schedule the mediation for a date that is agreeable to both parties and the mediator.
On the day of the mediation, the parties will meet with their attorneys at a neutral location, typically the mediator’s office. The mediator will outline rules and expectations. The setup will look more like an informal boardroom discussion, not a formal, adversarial courtroom proceeding.
Statement of the Issues
Each party will present its position. Your lawyer will speak for you and will likely ask that you remain silent so as to avoid inadvertently admitting fault. You will have an opportunity to meet with your lawyer before the mediation so you can weigh in on how to present the issues.
The parties will break into separate, private rooms, where the mediator will alternately speak to each and offer his or her own unbiased, neutral opinion. Because most mediators are experienced litigators by trade, they can provide a unique insight into the legal issues and the value of the case.
This setup provides a safe space for each party to present his or her side of the issue. This also tends to be one of the lengthier parts of the mediation process, often lasting for several hours.
Identifying Common Ground
Once the mediator confers with each party, he or she will attempt to find common ground to determine which parts of the dispute, if any, can be settled. At this point, the mediator will return to each room to generate opinions from each party, helping each suggest options for settlement. The mediator will discuss these options with each party, alternately, as much as necessary.
Reaching an Agreement
While the final agreement may not capture each party’s ideal resolution perfectly, the goal is to reach a resolution that each party can accept. A compromised resolution does not carry the force of a judgment or verdict from a court, but the parties are nonetheless bound to it.
It is impossible to predict whether a case will settle. However, an increasingly large number of North Carolina civil cases resolve through mediation. As such, it is critical for plaintiffs in cases to take mediation seriously, to prepare adequately, and to work with their attorneys to ensure that they thoroughly understand the legal and factual issues at stake. In some cases, mediation may offer the least real opportunity to entertain settlement discussions before a case proceeds to trial.
The costs of mediation are usually reasonable and the parties generally split the mediators’ fees unless otherwise agreed. For experienced mediators, the cost may reach $300 an hour or more. This is all the more reason to prepare adequately for mediation to ensure an expeditious, productive discussion.
Moreover, courtroom proceedings are designed to keep things fair to both parties, whereas mediations have few formal rules. As such, parties may risk losing their edge to a more aggressive opponent. This is why it is vital to engage an attorney who will aggressively and passionately represent your interests – even outside of the traditional adversarial process.
Skilled North Carolina Mediators
To learn more about North Carolina Superior Court mediations, give us a call. We proudly serve clients across North Carolina and help them resolve their disputes through mediation and other forms of alternative dispute resolution. To speak with our mediation coordinator, fill out our contact form, or call Cynda Liebers in our Raleigh office at (919-278-7453).
This article does not establish an attorney-client relationship and must not be construed as legal advice.