Mediation FAQ

A mediator’s role is to help you and your spouse work through any differences. As a result, it is important that you and your spouse select an individual you both can trust. This individual does not have to be an attorney. While some attorneys are trained in mediation, they do not act as certified mediators. Your certified mediator can be a mental health professional, clergy, or any other trained professional. Your lawyer or a judge can assist you with selecting or appointing a mediator.

Arbitration can be initiated in one of three ways:

• you can initiate the arbitration process by filing a demand for arbitration;
• you and your spouse may both initiate the process; or
• arbitration can be court-ordered.

Mediation can be initiated in one of the following ways:

• you and your spouse may both decide to mediate at any point of the process; or
• the court may order mediation.

In North Carolina, the court requires that couples complete mediation before trial for child custody and equitable distribution cases.

In non-binding arbitration, unless you and your spouse agree otherwise, you are not bound by the arbitrator’s decision. If you and your spouse agree to be bound by the decisions of the arbitrator, that decision will become a court order. However, an arbitrator’s decision can still be overturned, vacated, or modified if it fails to uphold certain criteria.

If you have already filed a lawsuit and are involved in litigation, the mediation is your best chance to get all of the issues resolved before going to court. If your case isn’t resolved in mediation, you and your attorney will prepare to go to court to litigate all of the issues that weren’t resolved at mediation. For example, if the child custody and child support issues were resolved at mediation but alimony was not, you and your lawyer will proceed to court on the issue of alimony.  Sometimes, you and your lawyer will continue to try to resolve the outstanding issues with the opposing party and opposing lawyer.  If you and your lawyer agree, you could try arbitration or collaborative law.

If you haven’t filed a lawsuit and you tried a pre-litigation mediation, the next step would be for you and your lawyer to file a lawsuit and begin the litigation process.  You could ask the court to refer the case to mediation again at a later date.

Most definitely. As with any aspect of divorce, an experienced lawyer can help you navigate the process. An experienced divorce lawyer can explain your rights, review the facts of your case, explain divorce law and how it applies to you and your situation, and help you understand the divorce process. Most importantly, in mediation and arbitration, an experienced divorce lawyer can help you achieve the best outcome for you. An experienced lawyer can also tell you what to expect and how to handle a mediation and arbitration.

Your lawyer is your guide and advocate during the entire process, whether it be in mediation, arbitration, or in court. In arbitration, your attorney is your advocate and will help you identify the issues to be arbitrated. Just like in a trial, your attorney will represent you and argue your case in the arbitration. In arbitration, the arbitrator is the judge. Your attorney will prepare for arbitration just as if preparing for a trial before a judge in court.

Your divorce lawyer’s role in mediation is to help guide you through the mediation process. To that end, your attorney will advise you on decisions you’ll make and how the law applies to your case during the mediation. Typically, in mediations, issues like child custody, child support, alimony, and property division are resolved. Your attorney’s job is to protect your best interests in the mediation by advising and helping you through the mediation process. Your lawyer will work with you to make proposals and counter-proposals to the opposing party and opposing lawyer. Your lawyer will help prepare any final settlement documents if an agreement is reached in the mediation.