Some twenty-five years ago or more, a movement began to take hold in North Carolina. It was initially referred to as ADR – Alternate Dispute Resolution. The initial movement did not come from North Carolina lawyers; indeed, most members of the practicing bar in North Carolina – folks who refer to themselves as “litigators” – were very much opposed to the concept. The public, however, was weary of the expense of litigation; not only the dollar expense but the waste of time. The courts were backlogged then as they are now. Presently, the North Carolina Court System is grossly underfunded and many courts do not have enough judges to conduct the court’s business.
Initially, the Superior Court in North Carolina – the top tier of the trial court – experimented with ADR. It worked. Dockets became unclogged. Cases were resolved and the litigants felt good about the process because, unlike submitting the dispute to a judge and jury, they maintained an element of control.
The North Carolina District Courts dealt with domestic cases – divorce, separation, child custody, child support, alimony, and property division. They began the ADR process by implementing a custody mediation program. Child development “experts” had opined for years that the adversarial process was not well-suited to the issue of child placement. Litigants would say the worst they knew of the other side, which pretty much guaranteed that these parents would not get along with each other any better when the case was decided. Indeed, their ability to communicate was severely damaged, and if that were so, the children had little chance to develop into responsible adults.
Custody mediation has been a huge success in the great majority of cases. The District Court then began to require litigants to go through mediation in family financial cases – alimony and property division. This program has been a success as well. In this process, a private mediator’s fees are divided by the parties equally. Many attorneys became mediators. The State began to see the need to regulate these mediators and the North Carolina Dispute Resolution Commission was formed. Guidelines, testing, training, and certification followed. Many attorneys are certified to conduct Superior Court Mediated Settlement Conferences. Others are certified to conduct family financial mediations.
