Understanding The Pros And Cons Of Different Types Of ADR In NC

Alternative Dispute Resolution is the process of solving disputes without going to court. It allows people to skip out on the drama of a trial and handle conflict in a more peaceful manner. In North Carolina, each kind of ADR – mediation, arbitration, collaborative law, and referee – has pros and cons.

By understanding the advantages and disadvantages of each method, people facing family law issues can make informed decisions on how best to approach their unique situation.

Mediation

Mediation is a process involving either a trained mediator or an experienced family law attorney serving as a neutral third party to help determine what impediments are preventing two people from settling their family law issues. Being a mediator requires the ability to sympathize and empathize with people, listen to everyone, and help them figure out what might be a better alternative than leaving things up to the judge.

In North Carolina, a mediation involved the mediator, both spouses, and the attorney for each spouse. Unlike in some other states, in North Carolina, you bring your attorneys to mediation. This is to protect you and guide you, as the mediator cannot offer legal advice and the mediator cannot draft a legal document for you. Your attorney is there to advise you on any agreement and make sure you understand the legalities of the proposed agreement.

While every county differs, in Wake County, mediation involves you sitting in two different rooms, both you and your spouse with your attorneys, and a mediator going back and forth trying to come up with a settlement. Of course, you can mediate without attorneys, but we highly advise against it since you will lose the benefit of receiving legal advice about the proposals or your next offer and because no binding documents can be drafted and signed in mediation if a lawyer isn’t there to prepare them.

Often the roadblock to settlement isn’t a legal one, but one that’s psychological or emotional. When that is the case, a mediator can dig deeper into the divisive issues to figure out what’s most important to both parties and why. The “why” behind what’s important to people is usually what can help bring a resolution that may have seemed impossible.

For example, a simple apology from one party to the other or someone assuming responsibility may be all it takes to resolve a dispute. It is important to note that a mediator isn’t going to make any decisions for you, but will listen and direct the process in order to resolve challenges.

Pros

• Mediation relinquishes the need for litigation and formal proceedings, so it is often less expensive than regular divorce.
• Again, because you don’t have to go to court, mediation can be a much quicker method of dispute resolution.
• When you and your spouse work together to set the terms of your divorce or custody arrangement, you aren’t leaving your future in the hands of a judge who doesn’t know you or fully understand the circumstances of your relationship; you stay in control of the outcome!
• Mediation is confidential, so couples can discuss all matters of their divorce without airing their laundry in a public courtroom.

Cons

• While compromising isn’t necessarily a bad thing, mediation might lead you to accept terms you find one-sided or don’t fully agree with for the sake of keeping the peace or speeding up the process.  You may have buyer’s remorse in the morning if you don’t thoroughly think through what you are giving up to receive something else.
• There is no guarantee that mediation will result in an agreement. If you and your spouse go to mediation and cannot come to an agreement, you might still end up in court. While a good attorney will try their best not to let this happen, unfortunately, we cannot control the other party. It takes two to reach an agreement, after all. The mediator does not make decisions, unlike a judge.

Arbitration

Arbitration is another alternative dispute resolution method that involves hiring a private professional (usually a lawyer) who essentially acts as a judge and sits in the same room (or over zoom) with both parties to conduct hearings. Similar to court, they will take and review evidence, and then they enter an arbitration decision.

It is possible to start with mediation as your preferred alternative dispute resolution attempt; if, after meditating for several hours, you cannot reach an agreement, your mediator can become your arbitrator rather than having to find someone new to rehash all the details of your case with. However, if you go this route, you should consider the mediator/arbitrator will likely alter one rule about the confidentiality of mediation: things cannot be said in total confidence to the mediator because that person will later be your arbitrator and will be able to consider all evidence, including what was shared in mediation.  And the arbitrator will need to question you about those things so that the other side has an opportunity to hear them and respond.

Pros

• According to North Carolina’s Family Law Arbitration Act, an award has to be rendered within 30 days of the last date of arbitration, so for someone who appreciates a faster resolution, arbitration is a way to go. Note that scheduling may take some time though as at least five (5) people’s calendars have to be coordinated.
• An arbitrator controls the order of things, so rather than dealing with a situation where you’d normally wait a full day for another party to present evidence, the arbitrator can find another way that they deem more efficient, which can contribute to saving time. Also, witnesses can easily be taken out of turn and scheduled in advance, meaning that you aren’t paying for your expert to sit in the proceeding for hours because you don’t know exactly when it will be their turn.
• In court, you have dates set for all different aspects of your separation. With arbitration, you can deal with everything at once within 30 days.
• You work with someone who understands your situation and the nuances of North Carolina’s family laws, which is not necessarily always the case with a judge, unfortunately.
• Like mediation, arbitration offers the benefit of privacy.
• The decision made by an arbitrator is binding and final. It is typically only subject to review or appeal on a few issues, and the right to a review or appeal can be waived.

Cons

• The cost can add up. When you use an arbitrator, you have to pay the arbitrator’s fees , whereas the judge is a public official funded by tax dollars..
• Because an arbitrator’s ruling is final, there is no right to appeal their decision, so one party may get what they feel is an unfair award and there isn’t anything that can be done.
• While mediation is court-ordered in many types of family law cases in North Carolina, either by statute or local rules, arbitration must be consented to by the parties.  So, if the other party doesn’t agree to arbitration (or hasn’t agreed to it in advance, like in a Separation Agreement or Premarital Agreement), there is no way to force them.

Collaborative Law

In the collaborative law process, each person hires a lawyer and signs a pledge that they are not going to court. If they do go to court, they have to fire their current lawyers. This is to discourage people from going to court, as they’d have to restart the process with a new lawyer, which can be strenuous and time-consuming, as well as costly. The goal of collaborative law is to avoid litigation and reach the best resolution possible for the family.

It involves four-way meetings, between the spouses and their attorneys, and often includes divorce coaches, financial planners, and other specialty professionals, such as tax advisors, therapists, and real estate experts. Traditional collaborative law has not really caught on in North Carolina yet.  We think that’s, in part, because we find ourselves, at least at our law firm, being really collaborative naturally. We don’t like to play games with other attorneys. We are truthful and authentic because that is what gets us the best results for our clients. While collaborative law offers the benefit of privacy and can work for some couples, it isn’t ideal for contentious situations. In our opinion, not many people want to or can work collaboratively with someone they can’t stand to be in the same room with, whether it’s for reasons of betrayal, resentment, violence, substance abuse, or ongoing conflict.

Referee

A referee is a court-appointed person that takes and receives evidence, and then provides a judge with a written report regarding what they think the judge should doon a particular issue. Often judges prefer not to handle the division of smaller household items in a divorce, like kitchen appliances, furniture, personal belongings, etc. They’d send these items to a referee and allow them to decide what is and isn’t marital property, what the value of each thing is, who should get them, and then report back to the judge. The judge is likely to sign off on that report, unless a party takes issue with what’s been recommended by the referee.

When it comes to a referee, the biggest pro and con are the same – their decision isn’t final. It is simply an opinion given to the court. The court is not bound by the referee’s ruling. On one hand, this can add a layer of uncertainty, as a final decision rests in the hands of a judge; on the other hand, the lack of finality allows parties to challenge the referee’s report if they believe it to be unfair, which could lead to a different result.

Compensation of the referee may also be a con, as the fees might be greater than many of the items in dispute.  Of course, paying lawyers to be in court to argue over household goods can also be cost-prohibitive.  A pro is getting to resolve these matters outside the formality of court and being able to have a referee session much faster than a court date can typically be scheduled.