After the pleadings are closed (ie. complaint and answer are both filed), parties with Superior Court cases in North Carolina are notified that their case has been ordered into mediation. A party may make a motion asking for mediation if the court fails or delays to order it. Conversely, a party ordered into mediation may make a motion seeking to get out of the mediation for some reason. The mediation usually takes place after parties have had a chance to engage in discovery but before extensive trial preparations begin.
After a case is tagged for mediation, the first step is to select a mediator. If the parties do not agree to a mediator, the court will appoint one from a list of certified mediators. Once the mediator is chosen, the time of the conference is scheduled. The mediator is charged with finding a time that is mutually convenient, but in the end, the mediator chooses the date and location.
Attendance at the conference by the parties, their attorneys, and any insurance company representatives is required. If a company is a party, then a representative of the company with decision making authority must attend. Failure to attend can result in sanctions. The mediation continues until a settlement is reached or the mediator declares an impasse. Mediation is different from arbitration in that the mediator has no decision making power. He/she is only there to facilitate a resolution- not make a determination in the case.
The mediator’s compensation can be by agreement between the parties and the mediator or by court order. Unless otherwise agreed, the parties share this cost equally.
The mediation begins with the mediator setting certain ground rules. Then the plaintiff’s attorney provides a summary of the case. Exhibits are helpful and may be used. Once the plaintiff is done, the defendant’s lawyer gets to state the reasons why the claim is disputed. Most mediators give parties the opportunity to speak. Parties should discuss with their lawyers beforehand whether anything will be said. Typically at this point the two sides separate into two rooms and the mediator shuttles between them. Mediators usually begin by asking probing questions to understand the claims and defenses. Soon, however, things turn toward carrying settlement offers back and forth. If settlement is reached, it is advisable to get the terms in writing. Mediations typically only last one day.
Mediation has proven to be an effective means to resolving disputes. A successful mediation is not “a win.” Settlement requires compromise. If you want to take a chance at “winning,” understand mediation is not a trial and the mediator has no authority to render a decision. Mediation is a great opportunity to obtain an efficient resolution to a lawsuit. It requires that you listen to the other side and understand their position and evaluate the costs and likely outcome of a trial.
This article is meant as general knowledge and not meant to substitute for legal advice on specific issues. If you have a question, please call Doug McClanahan at 861-0693.