| Q. | Why has my case been referred to mediation? |
| A. | Mediation is a process by which you can settle your dispute quickly and in a way that is acceptable to those involved. Many times disputes before the Clerk involve delicate issues impacting families or neighbors: "Mom can't care for herself anymore, but refuses to leave her home. She needs a guardian." "Will my brother and I still be talking by the time Dad's estate is settled?" "My neighbor and I used to be close friends and help each other out -that is, until he put his fence on my land." When those involved in such disputes can come together and essentially work things out themselves, they not only settle their conflicts, but can often salvage and perhaps even strengthen important relationships. Also, when disputes settle earlier, tax payer dollars are conserved and Clerks are better able to allocate their time and resources. |
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| Q. | What happens during a mediation? |
| A. | A mediation is an informal legal proceeding. During the mediation, a neutral "mediator" will meet with the parties and their attorneys to help them discuss their dispute and search for mutually agreeable solutions. You can think of your mediator as a combination facilitator and referee.
To begin the conference, the mediator will explain the rules for your discussions and will probably ask the attorneys to describe the case from their respective points of view. If you do not have an attorney, you will be asked to give a summary of the dispute from your perspective. The mediator will then begin the negotiations. Unlike a Clerk or a Judge, a mediator will not make decisions for the parties. His or her ultimate goal is to help the parties resolve the dispute themselves by opening channels of communication, injecting reason into their discussions, and helping each side see the dispute through the eyes of the other. If the parties are able to settle their disputes, their terms will be put down in writing and the agreement signed. Eventually, the matter will be dismissed. If the dispute involves a guardianship, estate, or some other kind of dispute in which a Clerk is required to by law to approve a settlement, the Clerk will need to read and approve your agreement before the matter can be dismissed. |
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| Q. | Who will be present for the mediation? |
| A. | The named parties to the dispute and their attorneys, if any, and any guardian ad
litem involved in the matter will be required to attend the mediation. In addition, the Clerk has broad authority to order others to attend, including, those who have an interest in the outcome of the dispute or who have important information to share. For example, if the dispute involves a guardianship, a Clerk might order a neighbor, minister, housekeeper, or other person with information about the respondent's ability to care for him or herself to attend. If you know of individuals who should be participating in order for the dispute to be fully discussed or settled, but who have not been ordered to attend, you should alert the Clerk or your mediator.
Many disputes heard by Clerks, including estate and guardianship matters, may involve individuals who live outside North Carolina. The mediation process works best when those involved in the dispute are physically present. Those in attendance not only hear what the other parties have to say, but can observe their body language and hear the tone and pitch of their voice. Such non-verbal is often as significant as the words spoken. That said, if a party is unable to travel to mediation, it may be possible to participate by telephone. Let the mediator know of your situation as soon as possible. |
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| Q. | What if someone is physically or mentally unable to participate in a mediation or accessibility is an issue? |
| A. | Such issues can easily arise in guardianship and some other matters. If you or someone involved in the mediation is hospitalized, homebound, in a wheelchair, cannot hear, or may otherwise be precluded from or limited in his or her ability to participate, be sure the mediator knows as soon as possible. Sometimes medications a person is taking can affect his or her ability to stay awake and alert, particularly at certain times of the day. Advise the mediator of that situation as well. Sometimes a mediator can do things to facilitate participation, e.g., scheduling mediation at the home of participant who is homebound or in a wheel chair accessible building, holding the mediation at a time of day when the person will likely be most alert, or having a deaf interpreter available.
During mediations involving elderly or ill individuals, be sure to let the mediator know if it is necessary to take a break. Mediators typically will not mind if participants bring a snack or drink to the proceeding. |
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| Q. | Will I be expected to actively participate in the discussions at the mediation? |
| A. | You and your attorney, if you have one, can decide that. The mediation process is designed to allow those involved in a dispute to take a more active role in discussing and settling their conflicts. However, some parties prefer to let their attorney speak for them. Because mediation is an informal proceeding, you will not be sworn in or asked to formally testify. |
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| Q. | Will my attorney be with me throughout the mediation and will I be able to speak privately with my attorney if I need to? |
| A. | Yes. Your attorney will be present throughout the proceeding. If at some point during the mediation you wish to speak privately with your attorney, you can ask the mediator for an opportunity to do so. |
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| Q. | How much will mediation cost? |
| A. | If you, the other party, or the attorneys involved choose your mediator, the mediator's fee is determined by agreement with the mediator. If your mediator is appointed by the Clerk, he or she will be compensated at the rate of$125 an hour for mediation services plus a $125 one time administrative fee. Ask your attorney, if you have one, when payment of the mediator's fee will be due. In estate and guardianship disputes and other disputes wherein the Clerk is required by law to review and approve the mediation agreement, the Clerk will apportion the fee following mediation. In those disputes that may be settled by agreement and without the need for the Clerk's approval, payment of the mediator's fee will be due at the end of the mediation. |
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| Q. | Who will be my mediator? |
| A. | You and/or your attorney will have an opportunity to help select a mediator to conduct your mediation. The N.C. Dispute Resolution Commission has been charged by statute with certifying mediators to conduct mediations in matters referred by Clerks. You and the other parties involved in your dispute will be given an opportunity to select a mediator. If your dispute involves an estate or guardianship, you must select a mediator who has received special training and is certified by the Commission to mediate such disputes, i.e, a certified Clerk Program Mediator. If your dispute does not involve an estate or guardianship, then you may select any mediator certified by the Commission, i.e., a Mediated Settlement Conference (superior court mediator), a Family Financial (district court) or a Clerk Program Mediator. All certified mediators have completed at least 40 hours of mediation training and have met threshold qualifications established by the Commission for certification eligibility. Many certified mediators are experienced attorneys. Others are seasoned businessmen and women or have other qualifying professional experience. Lists of certified mediator are posted on this website. Click on "List of Mediators" from the main menu. If you and other party or parties to your dispute cannot agree on a mediator or make no effort to select one, the Clerk will appoint a certified mediator to conduct your mediation. |
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| Q. | What if I prefer to have the Clerk try my dispute and do not want to participate in mediation? |
| A. | Once your case has been referred to mediation by the Clerk, you and your attorney must participate. However, if you both believe there is some compelling reason why your dispute should not be mediated, you may ask the Clerk to rescind his or her order and to try your dispute. Do not be too quick to reject mediation. Even in disputes where parties seem hopelessly at odds, a skillful mediator can sometimes find a way to get those involved thinking and talking about ways to resolve their conflicts and to salvage relationships that have become strained. |
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| Q. | Where will my mediation be held? |
| A. | Your conference may be held in the law office of one of the attorneys involved in the matter or in the mediator's office. Sometimes mediations are held in public buildings like the courthouse. If your mediation involves a person who is hospitalized or homebound, be sure to alert your mediator. It may be possible to hold the mediation at the hospital or in the individual's home. |
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| Q. | What if I am unwilling to agree to the terms discussed at the mediation? |
| A. | Not every dispute can be settled. Simply do not sign any agreement with which you are not comfortable. If an agreement cannot be reached, your mediator will advise the Clerk and he or she will set the matter for trial. Your mediator will not advise the Clerk about the discussions at mediation or tell the Clerk why the dispute did not settle. |
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| Q. | What if I have a complaint about my mediator's conduct? |
| A. | You can address your concerns to the mediator in the hope that any misunderstandings can be resolved amicably. You or your attorney may also file a complaint with the Dispute Resolution Commission in Raleigh. The Commission enforces Standards of Professional Conduct adopted for mediators in North Carolina. The Commission may be contacted at (919) 783-1574. |
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