In the midst of limitations imposed on the judicial system by Covid-19, we have experienced many successful mediation outcomes using video conferencing. We believe controlling a case through alternative dispute resolution (ADR) is frequently the best way to resolve a case. In the current pandemic, it is also both safe and expeditious when compared with the necessary disruption and delays now imposed on the court system. Virtual mediation has enabled us to continue to utilize ADR to move cases forward safely and efficiently during this time.

Cases involving family related matters, such as divorce, child custody, child support, postseparation support, alimony, and equitable distribution of property are commonly referred to by judges, lawyers, and others within the legal profession as “domestic” cases. Laws regarding domestic cases vary from state to state. The laws of North Carolina are specifically structured to encourage parties involved in domestic disputes to settle their legal problems outside of court. Thus, excepting emergency matters, you likely will have many opportunities to try to settle your legal matters prior to going to court. Some of the most common domestic disputes include the following issues:

·       determination of child custody and visitation;

·       determination of child support;

·       determination of postseparation support and/or alimony;  

·       division of marital property and debts;

·       modification of child custody and visitation;

·       modification of child support;

·       modification of spousal support; and

·       enforcement of contracts and/or court orders.

There are formal alternative dispute resolution “ADR” processes that have been adopted by the North Carolina Supreme Court for use in family financial settlement matters. Those ADR processes include the following:

·       Judicial Settlement Conferences (if available in the judicial district);

·       Mediation; and

·       Neutral Evaluation.

There are other ADR processes that can be used in family law matters, including arbitration and collaborative law. Siemens Family Law Group provides and participates in a variety of dispute resolution processes that may be used as alternatives to litigation, or in conjunction with litigation. 

One method of dispute resolution that is not formally recognized as an ADR process, but is commonly used by experienced divorce lawyers, is “informal settlement negotiation.” These are communications related to settlement proposals that occur between your attorney and the opposing party’s attorney (or the opposing party directly, if he or she does not have an attorney). In such situations, often prior to filing a lawsuit, your attorney will reach out to the opposing attorney (or the opposing party) to identify the issues in controversy and determine whether the opposing party is willing to voluntarily discuss the issues in dispute and attempt to negotiate a mutually satisfactory agreement. Many issues may be resolved in this manner, particularly temporary issues such as which party will remain in the former marital home.

Informal settlement negotiations are most likely to be successful when both parties are desirous of a “friendly divorce,” or when there are limited issues in dispute. However, there are situations, such as in cases involving domestic violence, or when there is risk of a child being removed from the court’s jurisdiction, when your attorney might recommend that you immediately take legal action.

Informal settlement negotiations can continue after a lawsuit has been filed and even during a trial up until the time a judge has rendered a decision. Some of the most productive informal settlement negotiations occur after mediation has taken place and the parties have had an opportunity to better understand each other’s positions and weigh the pros and cons of turning the decision-making process over to a judge.

When parties are able to resolve their issues through informal settlement negotiations, their agreement can be memorialized in a written contract, or in a consent order, which is an agreement of the parties that a judge signs and is enforceable as a court order.

If the parties cannot reach an agreement through informal negotiations, the formal ADR processes are available for parties to participate in to try to resolve their legal matters outside the courtroom.

The dedicated attorneys at Siemens Family Law Group firmly believe that families are best served when their legal disputes are resolved in a fair and expeditious manner. Whether we are at the negotiating table or in the court room, our family law attorneys are committed to providing zealous representation to help our clients achieve their goals and attain favorable results. Our core mission is to provide justice through effective advocacy.  

Check back soon for Alternatives to Court, Part 2: Mediation, to learn about mediated settlement conferences and why they are one of the most effective tools for resolving family law matters outside of court.

Jim Siemens

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This article is intended for information purposes only and is not to be considered or substituted as legal advice. This article is based on North Carolina laws in effect at the time of posting.