Rules of Family Financial Mediation
Mediation is a fantastic alternative method of settling your case and often more satisfying than going to court. It is likely that a few issues stand between settlement and more prolonged litigation. This is where mediation can really shine—it lets you laser focus on the few things you really care about. A mediator must be a neutral third party that also happens to be an expert in family law, or a former judge that has decided many family law cases. In all court-ordered mediations, there are rules. In North Carolina, some new rules have been passed and can be found in NCGS § 7A-38.4A. This is a quick reference for how some of those rules will apply to your mediation.
Who can be a mediator for Family Financial Mediation?
The mediator must be certified. A list of certified mediators is published and updated at the NC Courts website. To be certified, the mediator must have an understanding of family law in North Carolina. There is also a laundry list of qualifications, classes, and educational requirements. These requirements can be found in Rule 8 of the Rules for Settlement Procedures in District Court Family Financial Cases. To be blunt, your mediator is highly qualified in the area of family law.
What cases can be mediated?
Rule 1(b) gives the shortlist of issues that can be mediated: family financial issues that include equitable distribution, alimony, post-separation support, child support, and contracts that concern with family law such as a separation agreement. This covers essentially all major issues in family law cases.
When can I leave the mediation?
The parties or mediator can recess the settlement conference (the actual mediation) and set a time to reconvene. Many reasons may justify the recess, such as time constraints. In a case where you believe the mediation to be stalled or that no settlement is in sight, the mediator must timely determine an impasse exists (Rule 6) and ask whether the parties wish to continue or end the mediation. Otherwise, you may leave the mediation when the issues are settled, and an agreement is reduced to writing and signed (Rule 4(c)).
Can my attorney be present at the Family Financial Mediation?
Yes. Unlike the court-ordered child custody mediation, an attorney is required be present. Likewise, the attendance of the parties is also required. Rule 4.
Can the mediation be remote?
Yes. New amendments to the rules address remote mediation in Rule 4(a)(2). In fact, the rules now seem to favor remote mediations with language stating that “Any party or person required to attend a mediated settlement conference shall attend the conference using remote technology.” Many accommodations can be put in place, and if a party would rather attend in person, agreements can be made.
Who pays the mediator, and when?
Rule 7 dictates that parties shall pay the mediator. The fee is paid by both parties in equal shares, unless agreed otherwise.
Can I record or use what was said in mediation as evidence?
No. Mediations are not recorded or transcribed in any form (Rule 4). Also, statements and conduct during a mediation are not admissible as evidence in your trial (Rule 10). There are exceptions if there is further litigation about the mediation itself. But generally, what this means is that offers for settlement that were discussed during mediation cannot be presented to the court.
The rules provide the structure and general procedure for mediation. Mediation itself can be very free flowing, which is a good thing, because it promotes settlement. Mediation is frequently faster than going to court. We encourage you to speak to your family law attorney about the potential of resolving your case by this process.