Some divorces are volatile, with spouses disagreeing solely for the sake of disagreeing. Others are calm and friendly, with spouses able to quickly and easily find satisfying agreements to any issues. Still others are on a spectrum between relaxed and volatile. Does mandatory mediation help any of these divorces find resolution more peacefully, faster, or at less expense? The answer to that question can be nuanced, and whether your divorce, custody issues, or other family law matter would benefit from mediation may depend on several factors. If you would like to learn more about how mediation, required or voluntary, may affect your North Carolina or South Carolina divorce, call King Law Offices at (888) 748-KING to arrange an initial consultation and review your case.
What Is Mandatory Mediation?
Mediation is a dispute resolution process during which a neutral third party, called a mediator, helps the parties negotiate mutually agreeable resolutions to their unresolved issues. Mediation tends to be informal, unlike a court hearing, allowing the parties to find solutions themselves rather than relying on others to make decisions. This can be very beneficial, as divorce issues are typically quite personal and are often better addressed with the more intimate knowledge that the parties themselves would have than by a judge who only has relatively superficial details.
Mandatory mediation means the parties are required by law or court order to participate in at least one mediation session before proceeding with litigation, if litigation is still necessary. While not every divorce can be resolved through mediation, 80-90% of divorcing couples are successful. When mediation is mandatory, the success rate is slightly lower, perhaps due to the participants’ reluctance to engage. Whether parties participate in mediation voluntarily or mandatorily, the agreements they come to are not legally binding until a judge approves them and incorporates them into a court order. This means that if a party felt pressured to make an agreement and changes their mind later, they may not be bound to honor the agreement if the court has not yet approved it.
Does My State Require Mandatory Mediation?
The Uniform Mediation Act (UMA) standardized the mediation process and introduced a confidentiality privilege for participants and their mediator. However, it does not mandate mediation. Additionally, only thirteen states have enacted it, with one more state introducing it. North Carolina and South Carolina have not enacted the UMA, but they do have requirements for mediation.
North Carolina
In North Carolina, N.C.G.S. § 50-13.1 provides that when custody or visitation of a minor child is contested, the state requires mandatory mediation. This also applies to motions for modifications, and may apply to motions for contempt related to custody and visitation. However, the law does allow the court to waive the requirement to mediate for good cause. The law also states that sessions are confidential and neither the participants nor the mediator can be compelled to testify regarding what is said or done during sessions.
North Carolina Courts Child Custody and Visitation Mediation Program explains that there are two mandatory steps to mandatory mediation. The first is an orientation class to prepare participants for mediation, and the second is one mediation session. Upon completion of those two steps, participants may indicate that mediation is not working and move on to litigation if needed.
South Carolina
South Carolina Court Rule 6 requires mandatory mediation. Specifically, this rule states that parties must participate in at least three hours of mediation unless they reach an agreement sooner. After three hours of mediation, if the parties cannot agree, they can move on to litigation. South Carolina Court Rule 8 provides that mediation is confidential except in limited exceptions.
Potential Benefits and Drawbacks of Mandatory Mediation
Mandatory mediation has both potential benefits and drawbacks, depending on the circumstances of the case. Understanding both the pros and cons of mediation is important to making the most of the time spent mediating the issues.
Mandatory Mediation Benefits
When parties attend mandatory mediation, they may see significant benefits for their divorce case. Some of these benefits include:
- Reduced Court Congestion: When divorcing couples go through mediation, and successfully resolve their issues, they do not need to litigate their divorce. This means fewer and shorter court hearings for those couples who cannot resolve their issues in mediation or for those who can resolve some issues but still need the court’s assistance resolving others. This means that divorcing couples may not have to wait as long for their divorce to be final, as they would not have lengthy waits just to get a hearing scheduled.
- Less Stressful: For some people, appearing before a judge can be stressful. Mediation allows parties to be more relaxed in an informal setting with a mediator, who is often less intimidating than a judge. When parties are not stressed about being in front of a judge, they may be able to engage in negotiations and find resolutions more easily.
- Early Conflict Assessment: Even in cases where mandatory mediation is unsuccessful, it can act as an opportunity for early conflict assessment. Each party is able to see the strengths and weaknesses in their own side as well as the other party’s. This can allow them to see where they may have a strong case to ask for what they want and where they may have a weaker case and should consider compromising.
- Faster Than Litigation: Litigating unresolved issues requires a court hearing, which is scheduled in the order cases are filed and when they are ready for that step. Depending on how many other cases there are and where in the process they are, some divorcing couples may wait weeks or even months for their hearing. Mandatory mediation, if successful, could allow the couple to agree on their unresolved issues in a matter of just a few hours. Once the agreement is submitted to the court for approval and incorporation into a court order, it could be just a few days or weeks before their agreement is part of a final court order and their divorce is final.
- Cost-Effective: Litigating a divorce may come with high attorney fees from the hours that an attorney spends working on the case and representing the client in court. Additionally, the individual may need to take time off of work for multiple court hearings, which may mean losing pay multiple times. Other expenses associated with these hearings could include daycare or babysitter fees and transportation (gas in the individual’s car or a rideshare). These expenses can add up quickly and cost both parties a significant amount of money. Mandatory mediation may reduce the time spent in court and thus, the money spent.
- High Success Rate: Roughly 80-90% of couples engaged in voluntary mediation are able to successfully resolve their issues. Mandatory mediation has a slightly lower success rate, but it is still a highly effective dispute resolution method that allows many couples to resolve some or all of their issues without appearing before a judge.
Mandatory Mediation Drawbacks
While there are many potential benefits to mandatory mediation, there are also drawbacks that must be considered. These drawbacks can hinder the mediation process, but awareness of them and how they may impact the individual’s case may reduce their impact.
Some of the drawbacks of mandatory mediation include:
- Inauthentic Negotiations: If one or both parties feel as though they are being forced to participate in mediation, they may not negotiate with sincere intentions of finding resolutions. Instead, they may make unreasonable demands and refuse to give in, or they may refuse to accept reasonable offers from the other party. They may also falsely agree to solutions, then claim to have changed their mind later.
- Ineffective in Some Cases: In highly contentious divorces, mandatory mediation may be ineffective. In these cases, the parties are so angry and so determined to have their own way that neither will be willing to negotiate. Instead, mediation in these cases is likely to be a continuation of the same arguing and frustrating demands that the parties have been engaged in throughout their divorce.
- Parties May Feel Forced to Settle: Often, people misunderstand mandatory mediation to mean that finding an agreement is mandatory, rather than simply participating being mandatory. This can result in some parties feeling pressured to settle for less than they deserve, or making agreements they are not entirely comfortable with, because they believe they must.
Three Reasons Mandatory Mediation May Fail
When mediation is voluntary, both parties have chosen to commit to the process, which increases the chances of successful outcomes. Mandatory mediation still has high success rates, but they are slightly lower than those of voluntary mediation. This is because one or both parties may not be as willing to participate in the process. Whether they deliberately take action to make the mediation fail or their reluctance to participate leads to a less-than-enthusiastic effort, there are a variety of reasons mediation may fail. These three reasons tend to be the most common, as well as being relatively simple to fix.
Inflexible Parties
Sometimes individuals have strong opinions on the desired outcome of the unresolved issues. Sometimes what they want is unreasonable or illegal. Whether they are simply unwilling to give in, or asking something unreasonable or illegal, if an individual is inflexible about potential solutions, mediation will fail.
A solution to this is being open-minded regarding potential outcomes. While an individual may feel strongly about a specific outcome, being open to other solutions will make it easier to come to an agreement. An individual’s willingness to discuss all options may also help to soften the stance of an inflexible spouse.
Communication Breakdowns
If the parties do not communicate effectively, mandatory mediation will likely fail. If individuals are requesting outcomes without providing the reasoning for the request, the other party is unlikely to be interested in granting the request or finding a compromise. Wanting a specific outcome “just because” is not effective communication in mediation.
Parties can overcome communication breakdowns or avoid them entirely by taking the time to explain both their request and the reason for the request. These explanations may help create understanding between the parties and this can bring the parties together to find compromise. Additionally, accompanying a request with the offer to give up something else can help mediation participants find agreement.
Lacking the Necessary Documents and Information
In the beginning stages of divorce or custody disputes, the parties should have an opportunity to engage in discovery, or the request for documents and information about the other party and their circumstances. This information can help both parties understand the other side and what they may be willing or unwilling to agree to. However, if one party does not have sufficient information from the other, or if one party refused to share the requested information, mediation will fail.
Individuals should ask for all the information they think they may need to mediate effectively. If an individual is not sure what to ask for, an experienced divorce attorney with King Law Offices may be able to provide guidance. Parties should also share all requested information so that both sides know their strengths and weaknesses and can enter into meaningful negotiations.
Three Ways to Improve Mandatory Mediation Outcomes
Individuals can also be proactive about improving the outcome of mandatory mediation. There are simple things individuals can do that may result in a more satisfying and successful mediation agreement.
Leave Emotions Out of Mediation
Divorce, child custody and visitation can be extremely emotional matters. Therefore, it is understandable that people dealing with these issues may have strong feelings about how things “should” be or what happened to bring them to this point. However, while this is understandable, divorce and child custody are legal matters, which cannot be ruled by emotion.
Even if it is difficult, mandatory mediation participants should try to focus on facts instead of feelings. They should come to mediation sessions feeling as well-rested as possible and focused on settling the case. Parties should work to avoid swearing, name-calling, yelling, eyerolling, and other emotional responses to things said or done in mediation. This can reduce conflict and make it easier to find agreement.
Balance the Power
Sometimes in a marriage, the spouses do not contribute equally to decision-making. This may be because one partner has a stronger personality, one partner did not feel entitled to equal decision-making power (for example, a stay-at-home parent may feel their spouse should make decisions since they earn the income), or because of abuse or control issues. Whatever the reason, if the power was unbalanced during the marital relationship, it will likely remain so during mediation. This means that the partner who has always had more power will continue to have more power and thus, make most of the decisions in mandatory mediation.
If a spouse is aware of a power imbalance in their marriage, they should take steps to balance the power before engaging in mediation with their spouse. One way to do this is to schedule a few counseling sessions before mediation with a therapist or counselor who can provide tools and tips for asserting their power during mediation sessions. Another option, which can be done in tandem with counseling, is to consult with an attorney to discuss what reasonable settlements or outcomes may look like. While an attorney cannot promise specific outcomes, they can offer examples of appropriate agreements that can make it easier for the individual to tell whether they are being offered a good compromise. Finally, the individual can limit or avoid contact with their spouse during the sessions, engaging with the mediator and any attorneys present, to restrict their spouse’s ability to manipulate them.
Keep Expectations Realistic
Another way to boost the odds of successful mandatory mediation is to keep expectations realistic. Parties should not attend mediation sessions expecting to get everything they want. Instead, they should make notes regarding the outcomes they could accept and those they could not. If they are uncertain, they may want to speak with an attorney to learn more about reasonable outcomes in their case. This can help them manage their expectations and avoid making unrealistic demands that will never be met.
How a Divorce Attorney May Be Able to Assist in Your Mediation
You and your spouse can engage in voluntary mediation, but even if you do not, both North Carolina and South Carolina will likely require you to participate in mandatory mediation before asking the court to make any rulings regarding child custody or visitation. Whether you voluntarily opt to participate or do so because the state requires it, King Law Offices may be able to help smooth out the process. We may be able to recommend qualified mediators that we have personally worked with, offer guidance regarding what reasonable outcomes may be, and give advice about what you may offer to give up in exchange for the more important outcomes you desire. Call (888) 748-KING to arrange an appointment and review your divorce or custody case.