Mediations in North Carolina: settle your case on your own terms.

AuthorCampbell, Chip
Position2015 Law Journal

The number of civil trials in North Carolina state and federal courts continues to decline. I certainly expect that trend to continue into the future. One reason is that many civil cases can and should be dismissed well before trial. However, mediation is a significant factor in the decline of the civil jury trial. More businesses and individuals are turning to mediation to resolve disputes because of its flexibility and the control it affords participants.

What is mediation?

A mediation is a settlement conference that is facilitated by a mediator, a neutral third party. Mediators do not have a financial interest in the outcome of the case, and they are typically paid by the hour. This fee is split by the parties, unless otherwise agreed. Importantly, unlike judges or juries, mediators do not make decisions about the case. Instead, a case settles at mediation only if the parties voluntarily agree to a settlement and reduce the essential terms of their agreement to writing. The court will then, if necessary, enforce the settlement so long as it is enforceable (e.g. not against public policy) and the essential terms have clearly been agreed upon.

Mediation as practiced in North Carolina typically begins with all parties together in a conference room. This is symbolic because a primary purpose of mediation is to bring the parties together to see if they can agree on a resolution to their dispute.

During the opening session, each side will have an opportunity to make an opening statement. Next, the parties adjourn into separate rooms for the private sessions with the mediator, who shuttles back and forth between the rooms to facilitate settlement discussions. The mediator is the only person at the mediation with the authority to keep the parties present at the mediation or to end the mediation before a settlement is reached. If a settlement is reached, then the parties should put the essential terms in writing before leaving the mediation.

Brief history

Mediation dates back to the 1990s in North Carolina. Before the use of mediations, if cases were settled, they would often be settled on the proverbial courthouse steps before trial. This was often the first time any serious settlement discussions took place following months, and perhaps years, of litigation.

One of my partners, Richard Boyette, who has mediated more than 1,600 business disputes in North Carolina recalls, "I became interested in this thing called 'mediation' in the early '90s...

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