In 1997, the General Assembly adopted N.C. Gen. Stat. §7A-38.4 establishing a pilot program for pretrial mediated settlement of equitable distribution disputes (disputes over the division of marital assets and debts). In 1998, implementation of the program began in pilot districts. That same year, the program's enabling legislation and rules were revised to create a dispute resolution menu in pilot districts. Under the menu, parties could select among: 1) mediated settlement, 2) early neutral evaluation, 3) judicial settlement conference (where authorized locally), and 4) any other dispute resolution procedure authorized under local statute.
At the conclusion of the Program's pilot phase, the General Assembly adopted N.C. Gen. Stat. §7A-38.4A authorizing statewide expansion of the Family Financial Settlement (FFS) Program effective October 1, 2001.
Mediation of equitable distribution disputes is now mandatory in North Carolina and the parties may also agree to talk about other matters relating to their divorce, including child support, alimony and custody and visitation. Post-divorce support disputes may also be referred to mediation.
The Family Financial Settlement Program is designed to be market driven in that parties, and not the court or State, pay for the mediator's services. However, if a party is found by the court to be indigent, i.e.,without funds to pay, the mediator will provide his/her services at no charge. Since they are paying, parties are encouraged to select their mediator or other neutral. Parties may choose a trained mediator who is certified by the Dispute Resolution Commission or they may nominate a non-certified mediator to conduct their mediation. Certified mediators are trained and have met the requirements for certification set forth in Rule 8 of the NC Supreme Court's Rules Implementing Settlement Procedures in Equitable Distribution or Other Family Financial Cases. If the parties cannot agree on who shall conduct their conference or take no action to select a mediator, a district court judge or his or her designee will appoint a certified mediator to conduct the conference.
The mediator is responsible for scheduling the conference and for finding a location where it can take place. Conferences are held in a location agreeable to the parties and the mediator. In the absence of an agreement, the mediator shall schedule the mediation in a location in the county where the action is pending. Court appointed mediators are paid $150.00 per hour for mediation services plus a one time, per case administrative fee of $150.00. Court appointed mediators are not reimbursed for travel time or expenses. A mediator selected by the parties is compensated as agreed upon between the mediator and the parties.
The mediator serves as a facilitator only, focusing the parties' discussions and brainstorming with them in a search for settlement options. A mediator should not impose his/her judgment on the parties or try to force them to settle. Following a successful mediated settlement conference, the agreement reached will be reduced to writing and signed and the mediator will notify the court that the case has settled. If an agreement cannot be reached in mediated settlement, the mediator will report an impasse to the court and the case will proceed to trial. (The court will not be told why the case did not settle.) Many times, cases which impasse at mediation go on to settle in the coming weeks as parties and their attorneys continue the discussion begun in mediation.