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Alternative Dispute Resolution (ADR) encompasses various methods of resolving legal issues without resorting to traditional litigation (i.e., court). These methods are usually more cost effective, expeditious, more amicable than an adversarial trial, and often times yield better results because the parties have more control over the process. Arbitration, mediation, and collaborative law are types of ADR.

ARBITRATION

Arbitration is the alternative dispute resolution process that is most similar to formal litigation. It can be thought of as a “private trial” where the attorneys for each side are able to choose the arbitrator, the rules of procedure for the arbitration, how evidence will be presented (i.e., by affidavit, live testimony, documentary evidence), and the date of the arbitration. Preparation for an arbitration is similar to preparing for a trial in that witnesses may be called to the arbitration, motions may be filed, and depositions may be taken. Typically, parties will testify at the arbitration proceeding. At the conclusion of the arbitration, the arbitrator issues a written award. Unless the parties agree otherwise, this award can be incorporated into a court order so that the parties will have the ability to enforce the arbitrator’s award as an enforceable court order.

Typically, the arbitrator is an attorney who has extensive experience in family law who acts as a judge. Although the parties must pay the arbitrator for his/her time, which, depending on the arbitrator, can easily range from $150.00 to $300.00 per hour, in a good number of cases arbitration can be the most efficient and most cost-effective way to resolve a case if the parties are simply unable to reach an agreement between themselves. For example, in traditional litigation it is not uncommon for parties to wait a year or more before their claims are heard. Or even more frustrating is when the parties’ claims are scheduled for hearing, but the judge’s docket is full and the judge simply does not have the time to hear the case during the session of court the case is scheduled to be heard. The parties are then “bumped” from the docket and forced to reschedule their case three to six months down the road. Each time a case is not reached during a session of court, or is “bumped” from the court docket by other cases, it costs the parties’ time and attorney’s fees. For this reason alone, arbitration is often both a cost-effective and time-effective alternative for litigating issues in dispute. Additionally, you can select your judge in arbitration, select where the arbitration will take place and choose who can attend. In the traditional litigation system, you have no control over this.

Q&A about Arbitration:

Q	What are the rules for conducting an arbitration?
A	The North Carolina legislature adopted the Family Law Arbitration Act (FLAA) in 1999. See N.C.G.S. §50-41 et. seq. This legislation outlines the rules for arbitration. However, the parties can agree to differ from these rules if they choose to do so.
Q	Can I force the other party to participate in arbitration?
A	No. Arbitration is completely voluntary. In order for an arbitration to occur, both parties must agree that they want the matter resolved through arbitration. If both parties agree to arbitration, the parties then enter into an Arbitration Agreement, which is enforceable and will require that both parties participate in arbitration to the extent outlined in the agreement.
Q	At what location is the arbitration held?
A	One of the advantages of arbitration is that the parties can agree on the location of the arbitration proceeding. It is typically held in a law office, and is usually the law office of the arbitrator. The ability to choose the location of the arbitration keeps the proceeding private as opposed to having a trial in a public courtroom.
Q	Can the arbitrator decide custody and child support?
A	Yes. However, the court always has the authority to decide issues of custody and child support and cannot delegate away its complete authority to an arbitrator. To that end, if a party does not agree with custody or child support decision made by the Arbitrator, that party can request that a district court judge review the Arbitrator’s decision to see if the custody or child support decision was made in the best interest of the minor child or if the child support award was reasonable and adequate to meet the child’s needs. The party seeking to vacate the Arbitrator’s award has the burden of showing the court that the arbitrator’s decision was not in the minor children’s best interest.
Q	What if one party doesn’t comply with the Arbitrator’s Award? How do I enforce the award?
A	Unconfirmed arbitration awards are contracts and can be enforced as such. A confirmed arbitration award allows a party to avail himself/herself to the contempt authority of the court and may have modifiability ramifications in child custody, child support and spousal support matters.
Q	Is arbitration binding?
A	Unless the parties contract for judicial review of errors in law, the arbitration is binding.
Q	Is the arbitrator’s award modifiable?
A	Arbitrator’s decisions regarding child support and custody are always available for review by the district court. Unless the parties have agreed that an award for spousal support shall be nonmodifiable, an arbitrator’s award may be modified just as a judge’s order for spousal support may be modifiable.
Q	What if the arbitrator clearly made a mistake? Can the arbitrator’s award be corrected or vacated?
A	Yes. A party can petition the district court to vacate or correct an arbitration award but the reasons for vacating an award are very specific and related to procedural improprieties, such as bias. The district court also has the authority to modify or correct an arbitration award if there is an evident miscalculation of figures or mistake in the award, if the Arbitrator awarded upon a matter not submitted to them, or if the award is imperfect in a matter of form, not affecting the merits of the controversy.
Q	Can I appeal an Arbitrator’s Award?
A	Unless the parties specifically agree otherwise, judicial review of errors of law are not permitted. One of the primary advantages of arbitration is the efficient finality of an award as opposed to a trial with appellate review. If appellate review is preserved in the agreement or consent order to arbitrate, the review will be conducted initially by a district court judge.

MEDIATION

Mediation is a dispute resolution process in which a neutral third party, the mediator, assists the parties in trying to reach an agreement. Often times a mediator is an attorney who has extensive experience in family law and who has received special training in mediation. The mediator does not advocate for either party. The mediator’s job is to help parties work out their own agreements by leading the disputants through a structured discussion process, by exploring the parties’ needs and interests, and by helping them formulate specific solutions to resolve the disputed issues. The parties can agree on a mediator and each party’s attorney can be present during the mediation if the parties wish. In Wake County, parties who have filed claims for equitable distribution in the courts are required to attend mediation or some other form of dispute resolution.

The process of mediation is unique and flexible. The parties can meet with the mediator together, or, if emotions are high, as is typically the case in family law matters, the mediator can meet with each party in private, what is known as “private caucuses” and then communicate back and forth between the parties. The mediator should be free to separate the parties if the mediator believes the mediation will be more productive. Likewise, if the mediator believes that the parties can accomplish more by telling each other their positions, the mediator may elect to have the parties together in one room. The mediator does not make any decisions in the case. The decisionmaking authority is left to the parties. That is one of the most attractive reasons for mediation—the parties maintain control of the process. This doesn’t mean that each party will won’t have to make concessions, but if the parties do reach an agreement, it will be their own settlement, rather than a decision imposed upon them by a judge.

After working with the parties, if the mediator believes that the parties simply cannot resolve their disputes, then the mediator will call an “impasse” and the mediation ends. At that point, the parties can continue with the case either through litigation or arbitration. Usually, but not always, the parties share equally in the cost of mediation. The mediator usually requires an upfront retainer to conduct the mediation, of which each party pays one-half.

Linda Ward is certified by the North Carolina Dispute Resolution Commission as a Family Financial Mediator. She has extensive experience and success in representing clients in mediations and is available to mediate your family law dispute. Ms. Ward charges $150.00 per hour to mediate family law disputes and will mediate cases with the parties only and with the attorneys participating in the mediation process.

Visit www.ncdrc.org to learn more about mediation in North Carolina.

Q&A about Mediation:

Q	What are the benefits of mediation?
A	Mediation is less expensive that litigation, puts the decisionmaking in the hands of the parties and can be a productive means to resolve a dispute when attorney negotiations are getting you nowhere.
Q	What issues can be mediated?
A	Equitable distribution (the division of property and debt), custody and visitation, child support, and spousal support are all issues that can be addressed in mediation.
Q	Who chooses the mediator?
A	The mediator is often someone that the parties agree upon. If the parties cannot reach an agreement on a mediator, the court can appoint a mediator.
Q	Why should I participate in mediation if it is not binding?
A	Although no party is required to reach an agreement in mediation, if an agreement can be reached it often saves both parties the expense and time that is required for a trial. At the same time, mediation gives each party the opportunity to address the matters that are most important to them and to reach decisions based on what they believe to be in their own (or their children’s) best interests. Additionally, parties are sometimes able to reach decisions on part of the issues through mediation, which can narrow the matters to be tried by the judge. This can save thousands of dollars in attorney’s fees.
Q	How long does a mediation session last?
A	The amount of time varies depending on the progress being made at the mediation, the complexity of the issues in dispute, along with many other factors that make the duration of mediation very difficult to predict. It has been our experience that most mediations will take at least one full day to complete.
Q	Do I have to have an attorney to participate in mediation?
A	No. However, it is important to understand that the mediator cannot give either party legal advice. It is very important to either have your attorney present at the mediation or review any agreements from mediation with your attorney prior to finalizing the agreement. During the mediation process, your attorney can advise you of your legal rights, discuss with you what settlement options are in your best interest, help you strategize on ways to negotiate or reach the settlement that you want.
Q	I am not sure if I should participate in mediation. How do I know if mediation is right for my case?
A	Mediation is not a panacea, and will not work in every case. However, most cases can be resolved in mediation if both parties have reasonable expectations and are willing to make some concessions in order to resolve the case. It is best to discuss your concerns about mediation with an attorney who can help you decide if mediation is appropriate in your case.

COLLABORATIVE LAW

Collaborative law is a relatively new approach to solving family law disputes. In the collaborative law process, each party retains his or her own attorney. Both attorneys must have completed special training in the collaborative law process. The goal of collaborative law is to focus on problem solving and amicable negotiations through a non-adversarial process. The distinguishing characteristic of the collaborative law process is that both parties and their attorneys sign an agreement that they will not go to court. This means that if the negotiations break down, the attorneys must withdraw from representing their client and the clients must hire different attorneys to represent them in court. This provides a great incentive for the parties to negotiate and reach a settlement.

The parties must agree to full disclosure of all relevant information and that they will conduct themselves civilly and respectfully during the negotiations. The parties and their attorneys meet together as a group and focus on the interests of both parties. Each party has his or her attorney present to ensure that the party’s interests and goals are adequately addressed. Experts, such as accountants, financial planners, and appraisers, may be consulted and they must share their opinions with both parties. The attorneys do not speculate what would happen in court but rather focus on reaching an agreement that satisfies both parties. This approach is effective when both parties genuinely desire to reach a settlement that will serve the family’s best interests and are fully committed to the collaborative law process.

If the parties cannot reach an agreement through the collaborative process, the parties can opt to participate in mediation or submit any unresolved issues to arbitration, without having their attorneys withdraw. The parties’ attorneys in the collaborative law proceeding may also serve as counsel in mediation and/or arbitration.

Collaborative law can be a cost-effective, dignified and respectful way for a husband and wife to resolve their disputes.

Q&A about Collaborative Law:

Q	What is the difference between collaborative law and traditional negotiation?
A	Collaborative law takes a “team approach” to solving family law disputes that is not present in traditional form of adversarial negotiation. Under the collaborative model, the parties and their attorneys work together to resolve the issues.
Q	What are the benefits of collaborative law?
A	Collaborative law has several important benefits, including the benefit of keeping your personal matters out of public courtrooms. Many parties also prefer collaborative law as a way to resolve issues in dispute without further damaging the relationship between the parties. Collaborative law does not involve bashing the other parent or rehashing old grievances or punishing each other for mistakes made during the marriage. It is about finding solutions to very real and personal family issues. Finally, the decisions reached in collaborative law are decided by you and your spouse and not by a stranger, such as a judge.
Q	I do not trust my spouse, who has been lying to me constantly. Should I still participate in collaborative law?
A	Collaborative law isn’t for every one and every case. Collaborative law is designed for parties who can work together, who can be open and honest with each other, and who desire a fair settlement for everyone involved. If you are interested in the collaborative law process but are unsure if it is the right process for you, discuss your concerns with an attorney familiar with the collaborative law process.
Q	What happens if the parties are not able to work out an agreement using collaborative law?
A	The parties can try mediation or arbitration and keep their current attorneys. If the parties opt to go to court, the attorneys must withdraw from the case. Additionally, neither party can use the joint experts they used during the collaborative law process. Failure to settle in collaborative law or take advantage of mediation and/or arbitration could result in the parties spending a substantial amount of money on new attorneys and new experts.
Q	Who does the attorney I hire work for in the collaborative law process?
A	Your attorney will work for you to advise you of the law and help you reach an agreement with your spouse. The attorney’s utmost duty is always to his or her client and your collaborative law attorney should represent you zealously and diligently; however, in collaborative law, your attorney will be very open with the other attorney in sharing information and will work closely with the other attorney to resolve your case.
Q	How much will it cost to resolve my case through collaborative law process?
A	The expense will vary depending on the issues in dispute, but collaborative law is typically much less expensive than litigating your case through the public court system. Additionally, collaborative law cases are one of the few types of cases that we take on a flat fee basis.

The material provided in this Website has been prepared by Ward & Campbell, P.C., for informational purposes only and is not intended as legal advice. Transmission of this information does not create an attorney-client relationship between the sender and receiver. Online readers should not act on information they learn from this Website without first seeking counsel from an attorney about their particular legal situation. Linda K. Ward, Rachel C. Campbell, and Sasha L. Carswell are licensed to practice law only in the State of North Carolina.

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