The Mediation Solution: Property

Why does it take so long for the court to hear my Equitable Distribution (property) case?  There is no short answer but if you consider that the Court schedules approximately 2 weeks per month (9 trial days) to hear domestic cases and the average length of each contested case being a day (6 hours in court), the math would tell you that a judge could hear only about 100 trials per year.  Considering that there are over 5000 cases filed in our County alone each year it quickly becomes obvious as to why it takes so long.   The budget does not allow for more Judges to speed up the process; so what is the solution?  Delay or Financial Mediation.

The first step to address the backlog of cases was to change the law to require all parties in an equitable distribution case to attend financial mediation prior to a Judge getting involved in all but the most urgent property decisions.  Financial mediation in North Carolina comes at a cost and in our area that is about $200 an hour for the mediator’s services.  The mediator is actually an attorney with specialized training in mediation.  The typical mediation will run from 10:00 am until 5:00 pm (7 hours).  Add in some administrative fees in and the bill becomes around $1600 which is split equally between the parties so plan on around $800, though it can be less.  This is a bill to be paid by the client on the spot directly to the mediator and is generally not part of the attorney fees you paid to start the case as those were for the attorney, not the mediator.

The preparation for mediation is extensive and time consuming by your attorney.  The rules require that each party complete a spreadsheet that identifies the property to be considered, provides a value, recommend who should get it and then keep a running financial tab on how much each person is receiving.  This is the same information that will be presented to a Judge if the mediation fails.  Since the attorney has to collect and review all these documents and load them on the spreadsheet, a lot of delays are encountered because clients can’t find, don’t know, or are unwilling to locate the necessary information.  The attorney has ways of obtaining most of the documents but the legal process to do so may take months and will come at a substantial additional legal expense to the client.  A lot of times it would only take an hour if the client would just go online and print out the bank statements requested.  Remember that attorneys don’t (and shouldn’t) have your passwords and access to your private identification information.  As a result, active involvement by the client and the attorney are required during this preparation phase to make sure that no debt or asset is left out.

Present at the mediation is Client A and his/her attorney in one conference room and Client B and his/her attorney in another conference room.   The parties rarely see each other during the process as the mediator walks back and forth between the respective rooms carrying proposals and counter proposals.

It is an attempt by the mediator to facilitate a constructive negotiation by the parties with the advice of the respective attorney’s and for the parties to create a reasonable solution to their own financial issues.  The mediator is not there to decide anything but will draw attention to the reasonableness of a party’s viewpoint in light of the law and actual decisions typically handed down by Judges.  If mediation fails then the mediator gets a Judge to sign an Order reflecting the failure and then authorizing the calendaring for trial.   If the mediation is successful, the agreement is reduced to writing while still in mediation and after the parties have signed the document, one of the attorney’s will immediately take it to the courthouse for signature by the Judge and entry as a Court Order.

From start to finish this can be resolved in 6 to 9 months rather than 12-18 months.   From my experience, Financial Mediation in our district has about a 90% success rate.  In the end, the choice is you having a role in the decision or letting a Judge tell you how it’s going to be.

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