When parties separate from each other in North Carolina, they will most likely need to make a division of their marital assets and debts. If they can do that by agreement and without court involvement, that agreement is usually put into writing in the form of a separation and property settlement agreement. If, however, they cannot come to an agreement without court involvement, one or both parties will file an equitable distribution action and ask the North Carolina Court to make the decision on how to divide their assets and debts between them. An equitable distribution proceeding can take many months to resolve and usually ends up costing both parties a lot of time and money, so there is a preference for the parties to resolve their dispute outside of court. In furtherance of this preference, in North Carolina, before a trial court may hear your equitable distribution claims, you must attempt to resolve the issues through some form of alternative dispute resolution. The most common approaches to this are mediation and arbitration.
The mediation process is one in which a neutral third party, the mediator, meets with the parties and their attorneys and assists them in coming to a resolution. The mediator cannot make the decisions for you – he or she is simply there to facilitate the discussion regarding settlement. A day spent at mediation is often more productive than simply having your attorneys communicate back and forth over weeks or months with offers and counteroffers for settlement. In mediation, you are all in one place, at one time, with the ultimate goal being that all or at least some of the property issues are resolved that day. If your mediator is a family law attorney who has litigation experience, that mediator can also offer valuable and neutral advice about the offers that are going back and forth. It is your attorney’s job to advocate for you, but it is the mediator’s job to assist the parties in reaching a resolution, which may involve encouraging each party to give a little to reach common ground. If a resolution is reached at mediation, the parties will often sign some sort of document at the end of the day that lays out the basics of the agreement and then the attorneys will spend time in the days after mediation writing up a formal and detailed settlement that will be signed by the parties.
As an alternative to mediation, the parties may agree to participate in binding arbitration. Where a mediator is a facilitator of discussion and resolution, an arbitrator is a decision-maker. The arbitration process is much like a trial, but is usually conducted a little less formally than a trial is. Arbitration usually takes place in the arbitrator’s office and the arbitrator acts as the Judge. The parties present the case to the arbitrator in the same way that they would present the case to the trial court Judge and then at the end of the case presentation, the arbitrator makes a ruling. The parties will usually share in the cost of the arbitrator’s fees, so an arbitration can cost more than a trial (because when the case is tried to a Judge, there is no charge for the Judge’s services, but if the case is tried to an arbitrator, the parties do pay the arbitrator), but there are benefits to resolving the case through arbitration instead of in court. Usually, an arbitrator is an attorney who has been practicing family law for many years and so knows the law regarding equitable distribution without having to have it explained to him. Additionally, parties can often get on an arbitrator’s calendar more quickly than they can get onto a trial calendar and an arbitrator is more likely to schedule the case for as much time as the parties request whereas the trial court has to balance scheduling of many cases and so has limited time available. Finally, since court proceedings are open to the public, an equitable distribution trial is not a private matter and anyone can be it the courtroom watching the case, whereas if you arbitrate that is a private proceeding and only the parties, their attorneys, the witnesses, the arbitrator, and possibly a court reporter are present, so there is some protection from public scrutiny.
Whichever method of Alternative dispute resolution you attempt in your equitable distribution case, the attorneys at Collins Family & Elder Law Group can help you.
