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Don’t Be Afraid to Mediate – Part One

August 13, 2015 | by Lynn Wilson McNally

North Carolina allows couples to resolve property division, alimony, child custody, child support and other divorce-related issues as they see fit so long as the couple can come to an agreement. If parties cannot come to an agreement, the court will step in and resolve issues according to the law. North Carolina law requires divorcing couples to attempt mediation as a way to resolve any differences related to their divorce. Although most people believe that fighting it out in court is the only way to go, mediation is usually a better option for a number of reasons.

#1 – Divorcing couples who successfully mediate retain substantially more control over the final resolution of the case than those who choose to argue their case in front of a judge.

#2 – Reaching an agreement in mediation can save the parties from incurring extensive legal fees associated with litigating a case.

Irrespective of circumstances, if parties manage their expectations and approach mediation with the intent of reaching an agreement, mediation can and does work.

Common Misconceptions About Divorce Mediation:

“I thought the purpose of mediation was reconciliation.”  

Not at all. Mediation is not couples’ therapy. The purpose of mediation is to agree upon how property will be distributed, if alimony will be paid and how much, and to determine child custody and the amount of child support. Couples who mediate often reach a balanced settlement of the issues, with both parties participating in the decision-making regarding the future. Mediation allows the parties a chance to resolve these decisions away from the courts without the legal fees, time, and emotional energy involved in litigation. By resolving these matters out of court, mediation keeps personal issues more private. The end goal in mediation is to reach an agreement regarding the end of a marriage, not to fix marital problems.

“My spouse and I will never be able to reach an agreement.” 

While this might be true, the good news about mediation is that you don’t have to go it alone. Spouses do not discuss the issues directly with one another. Instead, communication is filtered through a trained mediator who will assist both parties in finding and reaching a middle ground.  Although there may be quite a bit of back and forth, depending on the complexity of the case, many mediations end with a resolution that both parties find acceptable. However, if an individual goes into mediation determined to get exactly what he or she wants and refuses to compromise on any issues, mediation will likely fail at helping the parties come to a mutual agreement. Mediation is the parties’ chance to directly influence the outcome of their divorce, so it is the parties’ best interests to at least give it a try.

“I don’t need an attorney for mediation.”

Although the mediator in a divorce mediation is generally an attorney with family law experience, he or she does not represent or protect the interests of either party. The mediator’s only job is to help facilitate negotiations between the two ex-spouses. If a party agrees to a term, provision, or arrangement that is not in that party’s best interest, the mediator cannot advise that person to do otherwise. At the end of a mediation, if the parties come to an agreement, they will sign a settlement agreement. This agreement is a binding contract. Therefore, it is always important to have the advice of an attorney before signing any agreement.

Lynn Wilson McNally is a partner in the firm and member of the firm’s Family Law practice group. She is a Board Certified Family Law Specialist and certified Family Financial Settlement Mediator by the North Carolina Dispute Resolution Commission. She represents individuals in matters regarding separation, divorce, child custody, child support, alimony, equitable distribution, domestic violence, termination of parental rights, legitimation and other matters pertaining to family law....LEARN MORE

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