Handled properly, mediation should lead to a curtailment of the hostile and adversarial features that are often exaggerated within the judicial system.

Mediation is widely seen in the United States today not only as an alternative to litigation but, perhaps more importantly, as a way for people to attempt to resolve their own disputes amicably, with the assistance of an ostensibly impartial facilitator. Given the American preference for self-determination, this is not a surprising development. It is, however, an option that must be evaluated with forethought and caution, rather than embraced unreflectively. Much depends on the facilitator. It is essential that a facilitator offering to mediate disputes be trained in mediation techniques. More significantly, the facilitator may have little or no legal training; and this lack of legal background can markedly affect the tenor and outcome of mediation. Much also depends on the parties to the mediation, as some people can work together more effectively than others.

In the present climate which promotes decreased use of our congested court system, clients find they can usually locate mediators of various backgrounds and diverse persuasions. Some of these facilitators do mediation full-time; some are mental health professionals with an office practice as well; some are attorneys who have developed special skills in mediation; still others are government employees working within legislative mandates governing mediation. Given the increased visibility of mediation and the growing availability of mediators throughout the country, clients need accurate information about what questions to ask of a prospective mediator and what to expect from mediation.

In this white paper, we will survey the interplay of factors that members of our law firm consider when they answer client questions about mediation. Clients in search of an efficient and effective resolution for their legal problems in the context of matrimonial law increasingly ask us questions about mediation: What exactly is the process of mediation? Would it be preferable to try to mediate the issues in my case? How can I know if my spouse and I should attempt mediation? Should mediation be done in conjunction with traditional negotiation between attorneys or litigation? Is mediation ever compulsory rather than a voluntary decision? In our experience, the answers to almost all of these questions are not likely to be crystal-clear, because a host of complex factors will determine whether mediation is suitable or advisable for a particular client. In other words, mediation could well be an attractive and feasible option for one couple when it would not be for another couple, even when the legal issues in both cases appear similar. While it may be useful for a client to explore mediation as an option, the client must remember that mediation does not replace the legal services of an attorney, which may be vital to safeguarding the client's interests, nor does mediation replace the legal process.

It is important to keep in mind, too, that there are many variations of facilitating disputes that fall under the rubric of "mediation." Mediation can involve someone who is a professional mediator, but it might also involve other professionals, including mental health specialists and/or attorneys or even some combination of specialists, although the training of such non-attorney personnel may be uneven and unregulated. Mediation can usually occur both before and during ongoing litigation. It can be used to address narrow, specific issues rather than the entire case, if that seems best in a given situation. Given that the parties are often able to establish their own ground rules for the mediation of their case, they might decide that the mediation will be binding or, more usually, they might decide that the mediation will be non-binding.

With the exception of several pilot programs in place across North Carolina, mediation in this state is voluntary rather than mandatory. Where mediation is mandated, as for example in child custody and visitation matters filed in Wake County after July 1, 1994, the parties may make application to opt out of such mediation under certain conditions. There is no question that North Carolina is part of a growing trend throughout the United States to deflect legal cases into mediation as a first resort. As of 1994 court-based mediation of custody and visitation disputes, in fact, existed in at least thirty-eight states and the District of Columbia. In thirty-three states there is some form of mandatory mediation for contested custody matters involving upwards of two hundred court-connected mediation programs.

Because most clients have some choice regarding mediation, the focus in this white paper shall be on examining the factors that affect decisions concerning voluntary mediation. No matter whether mediation is voluntary or mandatory, however, the role of the mediator is pretty much the same: the mediator functions as a neutral go-between, who assists the parties in defining both the issues that will be the subject of mediation and the outcomes they consider desirable. As a concomitant of this focusing function, the mediator also helps facilitate discussion between the parties and may offer support in finding ways to solve problems and negotiate. In theory, the mediator should permit the parties to establish their own norms. In practice, a mediator might explain some general principles, say, of visitation schedules as such schedules might impact on children of different ages. Above all, the mediator's job is to maximize cooperation between the parties and to minimize conflict that would impair problem-solving. Ideally, the mediator will guide the parties' choice-making in a manner that seeks to be non-judgmental.

While there are many different ways to structure the mediation of disputes, mediation frequently offers, together with other techniques of alternative dispute resolution such as arbitration, certain potential advantages over litigation. The most frequently cited possible advantages to mediation include the following. First, mediation permits the parties to shape the outcome in their own case according to their particular needs, in that the parties themselves reach consensus on the issues they have placed into mediation. Second, the time for mediation sessions may be more convenient than courtroom appearances, since mediation sessions can often be arranged according to personal scheduling needs and particular requirements for pacing and time frame. Third, mediation usually entails reduced expense and greatly reduced risk as compared to cases that must be fully litigated in front of a stranger, whether that stranger is a bureaucrat or a judge. Fourth, mediation offers the potential for savings of time and emotional energy. Fifth, mediation is decidedly more private than most court proceedings. Finally, a properly handled mediation should lead to a curtailment of the hostile and adversarial features that are often exaggerated within the judicial system. A successful mediation could, on balance, feature many, and perhaps all, of these benefits.

On the other hand, mediation probably does not accomplish the perceived advantages stemming from recourse to the courts. The sense of moral unambiguity and authoritative declaration of rights and obligations that results from the intervention of a judge in formal courtroom proceedings ranks first and foremost among the perceived advantages of litigation. A mediated result usually lacks an air of moral certainty and rectitude; thus, mediation may be a poor choice in cases where moral issues and symbolic values are of paramount concern.

A second advantage of litigation over mediation is the availability of systematic procedures for gathering and developing information during litigation. Where parties have well-founded trust in each other's disclosures of important data, mediation may be a safe alternative. If one party is likely to secretly conceal or misrepresent salient information on, say, the number and value of marital assets, mediation is very likely to be a poor choice and will most probably detriment the less informed party by a mediator who encourages the parties to reach stipulations as to value in the face of insufficient or inadequate data.

The danger just described highlights one typical situation in which mediation can actually harm the party who has relatively less control over asset or financial information. Other power imbalances, whether they be verbal, intellectual or emotional, can likewise lead to undesirable outcomes in mediation. For this reason, many commentators believe that parties should not attempt to mediate in situations of serious physical or emotional abuse. While it is quite true that the injured party may feel overwhelmed and intimidated by face-to-face meetings with the abuser, other commentators suggest, however, that special protocols can be used in such cases to enable the less powerful party to feel supported in the mediation. These cases of prior violence between the parties need to be addressed on a case-by-case basis.

Before deciding to try mediation, the parties need to recognize whether each of them has the capacity to work together, in a cooperative spirit, to be receptive to full and noncoercive disclosure, and to communicate their individual desires and needs to the other party. Mediation is likely to go awry if both parties do not have these abilities, along with the capacity to compromise on important issues. Where one of the parties possesses some superior "power," intellectual, educational or financial, the other party may be disabled from effective participation in mediation. Similarly, a party who has reason to draw out or capitalize on the conflict with his or her spouse, particularly for reasons of revenge or emotional satisfaction, is not a likely candidate for mediation, any more than a person with serious psychological disorder would be.

As can be easily seen, such multiple and varied factors will have a decided impact on the determination of whether a client's issues are suitable for mediation. One or both parties may be dissatisfied with the results from mediation if they or the mediator have improperly screened their case for suitability, if one or both parties had unrealistic expectations about what could be gained through mediation, if during the mediation the needs of one or both parties was incorrectly assessed or addressed, and/or if the facilitator was ineffective in focusing the parties' attention on appropriate process and subject matter concerns. One or both parties will be far more likely to be satisfied with mediation where each had a genuine interest in a negotiated settlement, each made a good faith effort to reach a compromise, and each believes agreement was reached based on a full and fair disclosure of all relevant facts.

Even if a party begins mediation, at no point should he or she engage in mediation sessions without periodic consultations with independent legal counsel.

A qualified attorney can review with the client the advantages and disadvantages of the options under discussion in mediation. The attorney can also weigh and evaluate, better than many mediators or the parties themselves, the legal and practical implications of the agreements the parties are proposing between themselves. The client will also probably want a lawyer to review any memorandum of agreement that emerges from the mediation. In many cases, this memorandum will serve as the basis for a binding contract between the parties, such as a separation agreement and property settlement, or as the basis for an order entered by consent. Such documents are best prepared by trained attorneys for the simple reason that they best understand the laws affecting the enforceability of agreements and the enforcement of judicial orders.