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- NC Family Law Resource Center
Divorcing couples usually have significant conflicts. Otherwise, they wouldn’t want to end their marriages. However, just because a divorcing couple no longer sees eye to eye, it doesn’t mean that they can’t work out forward-looking resolutions of their competing interests with the assistance of a neutral third party.
That’s the goal of family law mediation: To help divorcing spouses reach mutually acceptable agreements regarding how they will handle significant life matters after their marriage has dissolved. It is not couples therapy, and it is not an attempt to reconcile the divorcing spouses.
Using a neutral mediator, family law mediation allows divorcing couples to negotiate their own resolutions to issues such as child custody, child support, property distribution and spousal support. Instead of having a judge impose decisions that will affect the rest of your life — and the lives of your children — you get to play an active role in reaching a compromise that you can live with.
Unlike an arbitrator, the family law mediator does not hear evidence and testimony and then render a decision. Instead, the mediator functions more like a go-between who facilitates negotiations between two parties who likely would have a problem working things out on their own.
Mediators are trained to ferret out the real points of contention and focus the negotiations on ways to resolve those conflicts going forward, as opposed to dwelling on the past and fighting old battles. The focus shifts to how the parties will interact in the future as a divorced couple. Sometimes, moving the spotlight in this way reveals a lot of overlap in what the two people want.
Reaching agreements on the easily resolved matters first allows you to move on to the stickier areas. Mediators can also help you clear up misunderstandings and zero in on your priorities and the areas where there is room for compromise.
When it comes to what you feel the most strongly about, the mediator can offer you a realistic, objective assessment of your positions and how well – or poorly – they might play out. A good mediator knows the law and understands how the legal system works in your jurisdiction.
Unlike the courtroom, mediation is generally flexible and informal. You don’t have to follow rigid procedural rules, and you have more time to present your side and tell your story — something that is very important to many people who are in the midst of a split-up. It allows you to control the process instead of the process controlling what you get to say and do.
Some people might be concerned that their spouse will dominate the negotiations in an effort to get what he or she wants. Family law mediators are sensitive to the power balance and will take steps to address dominating behavior – even ending the mediation if the offending spouse won’t relent.
Although family law mediations often result in a resolution, you are under no obligation to sign an agreement. You still retain your right to have your case heard in court. In some instances, mediation will end with agreement on some issues, while other matters remain unresolved. A partial resolution is fine, and the outstanding issues can be left for further negotiation or trial.
In most North Carolina counties, divorcing couples are required to mediate matters relating to child custody and equitable distribution before going to trial. Although you must participate, there is no requirement that the mediation be successful.
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