Given the increased visibility of mediation and the growing availability of mediators throughout the country, clients need accurate information about what questions to ask of a prospective mediator and what to expect from mediation. In this white paper, we will survey the interplay of factors that members of our law firm consider when they answer client questions about mediation. In our experience, the answers to almost all of these questions are not likely to be crystal-clear, because a host of complex factors will determine whether mediation is suitable or advisable for a particular client. In other words, mediation could well be an attractive and feasible option for one couple when it would not be for another couple, even when the legal issues in both cases appear similar. While it may be useful for a client to explore mediation as an option, the client must remember that mediation does not replace the legal services of an attorney, which may be vital to safeguarding the client's interests, nor does mediation replace the legal process.
Mediation can usually occur both before and during ongoing litigation.
It can be used to address narrow, specific issues rather than the entire case, if that seems best in a given situation. Given that the parties are often able to establish their own ground rules for the mediation of their case, they might decide that the mediation will be binding or, more usually, they might decide that the mediation will be non-binding. With the exception of several pilot programs in place across North Carolina, mediation in this state is voluntary rather than mandatory. There is no question that North Carolina is part of a growing trend throughout the United States to deflect legal cases into mediation as a first resort. Because most clients have some choice regarding mediation, the focus in this white paper shall be on examining the factors that affect decisions concerning voluntary mediation.