Alternative dispute resolution (ADR) in North Carolina Civil Superior Court is known as mediation. A mediation settlement conference is required for most cases filed in Superior Court, prior to getting a trial date. Arbitration and mediation have several important similarities, along with some significant differences.
Once a lawsuit has been pending for a certain period, the parties will be notified that their case has been ordered to mediation. The court will set a deadline. Unlike arbitration, the parties can select their mediator.
Mediators in North Carolina go through a special training program to be certified. Mediators are experienced attorneys and/or retired judges that have gone through this training.
Good mediators are in high demand by smart attorneys and often, both sides will agree on the mediator for their case.
Usually, once the discovery phase is complete, the parties will schedule the mediation conference. Here, the litigants, their attorneys and the mediator will meet to hold the conference.
In the joint session, everyone sits around a conference table and the mediator gives a brief introduction and explanation of the rules of mediation and its purpose. Then the attorneys for the parties give a summary of their respective cases and lay out their theories of the case and what they are demanding for their clients.
Once this is done, the two sides go into separate rooms. The mediator starts with the Plaintiff to ask questions and get a feel for what the Plaintiff wants.
He will then move over to the Defendant’s room and find out what the Defendant’s position is and the defenses. The mediator is like a shuttle diplomat, going from one side to the other, trying to help the parties find common ground.
The goal of mediation is to put the litigants in the best position to settle their dispute and avoid the time and expense of a full-blown trial.
Good mediators help each side see the weaknesses of their case, and help people understand the inherent uncertainty of trials. Reasoned compromise can be better for both sides and takes away the risk of trial.
Some cases cannot be settled and skilled mediators know this as well. Even in cases of “impasse” the mediator educates both sides, which assists the parties and the lawyers in the eventual trial.
Unlike an arbitrator, the mediator does not make a ruling. The mediator cannot order anyone to do anything and everything said at the conference is privileged and cannot be used at trial.
When litigants reach compromise at mediation, the mediator will make a written report to the court. If not, the mediator declares an impasse and the case goes forward to trial.