Thinking Outside

of the Box:

Alternative Dispute

Resolution

When disputes arise, there are numerous ways to settle them. The traditional process of the court system, also known as litigation is an adversarial system. 

The Court Process

Litigation is an ancient way to resolve disputes. It relies on force, such as the subpoena power and the demand made by a judge in his or her order. The court system also relies on competing rights and strategies, and sometimes fault and blame. Both parties usually take advantage of every opportunity solely for his or her own benefit at the expense of the other. An example of this concept is cross examination, historically the process by which the truth is eventually discovered. Instead of trying to reach an agreement between themselves, the parties participating in a trial are adversarial, competing with each other for the judge’s decision. The judge must apply the applicable law, regardless of whether either or both parties like or dislike the judge’s remedy. Participation in the trial process is mandatory and failure to do so when required will subject the person to a charge of contempt of court and various sanctions.

Alternative Dispute Resolution (ADR)

Growing in popularity, ADR in North Carolina family law cases is both voluntary and involuntary. As the name implies, settling disputes with ADR is an alternative to the court system. Although it does have an associated cost, it is usually shared by the parties. Some methods of ADR do have results that are imposed on the parties, but more frequently in family law cases, they are not. An ADR process is usually more flexible, less expensive and quicker than court. There are four recognized types of ADR, although parties are always free to reach an agreement through negotiation without ADR or the court process.

Mediation

In family law cases, the process of mediation is required when there are pending claims of equitable distribution or child custody are filed. Child custody mediation is available when a custody case is filed, and it is mandatory unless a judge enters an order excusing participation. It is free and includes only the parents and a trained child custody mediator provided by the courts. Once an equitable distribution (marital property and debt) case is filed, family financial mediation is mandatory in Pitt County and many other North Carolina counties. The parties and their attorneys participate in that mediation at an office of one of the attorneys, and the parties share the cost of the mediator. In both custody mediation and family financial mediation, the mediator does not make any ruling. Instead, the mediator assists the parties by helping them reach a mutually agreeable settlement.

Other Types of ADR

Collaborative Family Law and arbitration are less common than mediation but are ADR methods available to parties who voluntarily participate. The parties can agree to let the arbitrator make a ruling on their case like a judge. Collaborative family law is similar to mediation because only the parties can settle their case, and no decision is imposed on them.