Mediation & Arbitration

When conflicts arise between parties to a separation or divorce, the family law judicial system has increasingly turned to Alternative Dispute Resolution measures outside of the courtroom as a method to seek resolution through compromise.

Because every situation is unique, it is important to work with an attorney who has the competence to represent you effectively, in whatever route your case takes, through the legal process. Smith Debnam’s family law attorneys are experienced in all forms of Alternative Dispute Resolution and can effectively guide clients through the process, often reducing both the expense of legal disputes and the length of time required to resolve them. Our team is lead by partners who are certified and experienced family law mediators, and we ensure that our clients have access to their intimate understanding and effective use of the mediation and arbitration process.

Common Questions

What are the benefits of mediation?

The biggest benefit of mediation is that the individual parties retain control over the outcome of their case. In arbitration and going to court, the parties lose control of the outcome of the case because a judge or an arbitrator decides the outcome.

Another benefit of mediation is that it is a more relaxed environment, where parties have the opportunity to discuss their case with not only their attorneys, but also with a neutral third party.

Finally, mediation gives the parties control over the amount of time they spend negotiating the case, as well as the outcome of the case. This process allows people to weigh the cost and benefit of each position with their own lawyer and with the mediator and then make appropriate business decisions to resolve the case.

When is arbitration useful?

Arbitration is most useful in complex cases involving business valuations or complicated financial or custody matters. Arbitration allows for a bit more convenience because parties do not have to deal with security and parking at the courthouse, and they can schedule a convenient time that works for all the parties involved, rather than being at the mercy of a judge’s tight schedule.

An arbitrator acts as a judge and listens to evidence, reviews exhibits and prepares a written decision based on the evidence. The written decision is then disseminated to the attorneys and parties in a timely manner for a clear plan of action. This procedure is much more efficient and alleviates many questions and delays.

How is arbitration different from going to court?

Arbitration frequently takes place in a lawyer’s office. The final decision is made by a third party in both cases, but arbitration can be less expensive than going to court and offers more flexibility. With arbitration, the parties and their lawyers may more easily plan uninterrupted time for the arbitration. They are also not at the mercy of the judges’ very heavy caseload and can use the flexibility afforded by the less formal arbitration process to arrange for witness testimony, which may otherwise be impossible.

Is mediation more affordable than going to court?

Mediation is almost always less expensive than going to court since most cases can be settled after a day of mediation, and both parties usually divide the cost of a mediator.

How is mediation different from arbitration?

The biggest difference between mediation and arbitration is that in mediation, a third party is not making the decisions, the individuals involved in the dispute are. In mediation, the parties retain control over their case, which is different than with private arbitration or litigation in the public court system. Although arbitration offers more flexibility than going to court, the parties are hiring a judge to make decisions for both parties. Mediators can be attorneys, but they are not required to be. There are no specific requirements for mediators in the State of North Carolina; however, certified mediators are trained to effectively facilitate this process.

Although arbitrators are not required to be lawyers, most arbitrators are in the legal profession. Lawyers will most likely recommend an arbitrator who has experience and a proven reputation for being fair. Mediation gives the parties the most control. A good lawyer will recommend trying to mediate the case first. If the case does not settle, the next step may be arbitration, and the final level is a trial.

Do you have to hire you own lawyer before you can mediate your dispute?

A person does not have to hire his or her own lawyer before mediating a dispute, but it is strongly recommended. Because the mediator is a neutral third party, he is not permitted to give legal counsel to either side because it would result in a conflict. Having the advice of independent legal counsel before and during mediation is always best.

What is arbitration?

In arbitration, each party presents his or her case in front of a private judge, who makes a decision that is legally binding for both sides. Arbitration is typically scheduled in a lawyer’s office rather than in a courtroom, which is often more convenient and less stressful from a scheduling standpoint. The arbitrator will listen to the evidence, review the exhibits and then usually prepares a written decision, resolving the parties’ respective claims.

What is mediation?

Mediation introduces a neutral mediator to the process, one who is experienced in resolving family law disputes and whose role is to understand the position of each side and work toward a middle ground to which the parties can agree. A successful mediation results in a binding, fully settled case, saving both parties attorneys’ fees and having to go to court.