Mediation is the process by which a third party (a “Mediator”) intervenes into a particular conflict or disagreement to help parties negotiate a joint resolution. In family law, a Mediation is a common process utilized to help parties come to an amicable resolution about their children, their property, their debts, and their finances after the ending of a relationship or marriage. In several family law claims, Mediation is actually required by local rules or state laws. For example: In North Carolina, mediation is required for child custody matters pursuant to North Carolina General Statute Sec. 50-13.1. This means that even if you want a Judge to determine your parenting arrangement for your child, you are still legally mandated to attempt to figure out a parenting arrangement with the other parent in a Mediation before the issue is presented to the Court.

What is the Mediator’s role?

A Mediator is a neutral third party that will be learning about a family’s particular situation on the day of the Mediation and helping in the development of a resolution. A Mediator is not a Judge or an Arbitrator; therefore, the Mediator does not have any decision-making authority. Rather, the ultimate decision-makers in a Mediation are the parties. The Mediator’s job and goal is to assist the parties in reaching a final resolution and agreement that works for their family.

What is the Mediation Process?

Depending on if the Mediation is court-ordered or a voluntary, private Mediation, the parties themselves will be in the same room or in separate rooms. If a party is represented by an attorney, then the party is allowed to have the attorney by their side during the voluntary, private Mediation process. It is generally advised that each party has an attorney in a family law Mediation because several legal questions often come up during the process. Since the Mediator is a neutral third party, the Mediator cannot and is legally prohibited from giving legal advice (even if the Mediator is also a licensed attorney).

Why Mediation?

Throughout the years of my litigation practice, I have never seen a party “happy” walking out of a courtroom at the end of a hearing or trial. Why? Because no one wins. At the conclusion of any hearing or trial, a stranger (albeit a Judge) has just told that party what happened in the relationship and marriage (despite never stepping foot in their home while they were together) and has ordered what that party is now required to do with their finances and children. No one knows their children, their finances, or their family better than the parties though. Personally, I would not want a stranger to tell me how to spend my money or when I can see my children. Thus, Mediation provides that tool where each party has an influence and say in the final decision. And if that is not enough, a Mediation is likely going to be required by the Court anyway…so why not attempt a voluntary, private Mediation before a lawsuit is even filed? 

If you or someone you know wants to learn more about Mediation, our Modern Legal Team is here to help.

Please note: these educational materials are based on North Carolina law where Theresa's legal and mediation practices are based. While the insights may have wide applicability, readers should consult with an attorney or mediator regarding the specific laws in their state or country. 

Written by: Theresa E. Viera, NC Certified Family Financial Mediator

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