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The Divorce Process Dispute Resolution
Rik Lovett & Associates
What To Expect
• Settlement Conference
• Mediation/Arbitration Hybrid
• Judicial Settlement Conference
• 1 to 4 months+
• Case resolved relatively quickly
• Legal costs controlled
• Settlement terms are confidential
• Events can prompt settlement negotiation
• Different options to fit different situations
• 75-100% settlement rate (mediation, JSC)
• 100% settlement rate (arb, med-arb)
• Other party has no obligation to settle
• Certain events do not guarantee resolution (settlement conference, mediation, JSC)
There are four classic alternative dispute resolution techniques that are being used in the domestic law arena: Settlement Conference/Information Mediation, Formal Mediation, Arbitration, and Collaborative Law.
This is where your attorney and the opposing attorney and the parties agree to meet. The objective is to get all four parties together in the same place (usually one of the attorney’s offices). Typically one party and their attorney are placed in one room and the other party and their attorney are placed in a another. For psychological / emotional reasons, it works best this way.
The key to resolving a case successfully with any of these alternative dispute resolution avenues, is preparation. To prepare the client, we have them complete a detailed questionnaire designed to elicit all the facts, figures, and evidence we need to resolve each / every domestic / family law issue (usually child custody, child visitation, child support, alimony, and property division). Then, we put together a trial notebook with all the relevant documents / evidence needed. The detailed questionnaire we have designed (to aid the client and paralegal in pulling this together) lists the documents needed (as well).
Once we have the completed questionnaire (clients detailed responses provided) and the trial notebook (assembled), Rik reviews both and develops a strategy /game plan with the client (for the settlement conference / informal mediation session).
A settlement conference / informal mediation can last as short or as long as the attorneys so choose. Typically the attorneys go back and forth into “the other side’s room” and float offers and discuss ideas for resolving the case.
Some of these settlement conferences can take all day (and into the night). Sometimes the parties will agree to time limit them.
Although it is difficult to put a percentage on it, settlement conferences / informal mediations are usually successful about 75% of the time.
The advantage of a settlement conference / informal mediation over formal mediation, arbitration, and collaborative law is that it usually lasts for a shorter period of time and there is no “third party” (such as a formal mediator or arbitrator) who has to be paid by the parties. Thus, the parties (if this is successful) can resolve their cases faster and pay less.
B. Formal Mediation
Formal mediation primarily differs from a settlement conference / informal mediation in that the parties hire a formal mediator for a formal mediation session. I only use a select number of mediators. There is a reason for this. An excellent, seasoned ,experienced mediator is often the KEY to resolving a domestic / divorce case. We only use either former Judges, Board Certified Specialists in Family Law (who have all had training in formal mediation), or attorneys with many years of experience with both domestic cases of their own and formal mediation. This is not a job for the beginner.
This setting is similar to the settlement conference / informal mediation setting in that the parties and their attorneys typically meet in one of the attorney’s offices. The parties and their respective attorneys are placed in two separate rooms. The mediator goes back and forth between the rooms. We have the client complete a very detailed questionnaire, prepare a trial notebook, and engage in a strategy session before attending formal mediation. Mediators typically charge around $225 an hour. A lot of the formal mediation sessions last all day and into the night (they would not last so long if the parties resolved their cases earlier, but most of the time, they don’t). Don’t shy away from the mediator’s fee. It is quite worth it. The parties usually agree to equally divide the cost of mediation (50 / 50). Let’s say, for example, that you mediate for 13 hours. The mediators usually adds a one hour “administrative fee” to their charge. So, 14 hours of mediation x $225 = $3150. $3150 divided by 2 = $1575. This is a small price to pay when you see what you often get. Over 90% of cases settle in formal mediation.
There are several reasons why formal mediation is so successful. The mediator has a vested interest in getting the deal done. He or she “succeeds” if they do so. The mediators we use are excellent at using copious emotional intelligence to win over the allegiance of both parties. Once they do so, the parties are willing to listen to what they have to say. These mediators have typically tried thousands of domestic / divorce cases themselves (or presided over them as the Judge). Thus, they are quite good at getting in the ballpark of “about what is going to happen in court anyway” if the case gets litigated. Both parties are naturally interested in resolving their case for the same result as they are likely to get in court for a far lower price and a lot sooner. Also, protracted litigation does take a toll on the parties. They are under intense pressure / stress and life is usually not very pleasant (while their case is in litigation). For these reasons and others, the parties have an incentive to settle their case (at this event). Additionally, the attorneys work (more so) in a proactive fashion towards creatively resolving the case (instead of fighting). The result is that you have two attorneys and a mediator all working toward a common goal (a fair and equitable settlement that is not too far off from what the parties are likely to get in court anyway).
If the parties successfully mediate their case, the attorneys usually draft a memorandum of understanding (on the spot) or sometimes can complete the draft of the Separation Agreement (that is in soft copy form) right then and there (and the parties execute the Separation Agreement and have their signatures notarized).
Arbitration is a different paradigm from a settlement conference /informal mediation or a formal mediation. Arbitration is much closer to an actual trial (like you would have in District Court). In an arbitration, both parties put on evidence(documents), the respective attorneys give opening statements, call and question witnesses, cross examine witnesses, and give closing statements (and can introduce case law). The arbitrator decides the case using N.C. law. The N.C. Rules of Civil Procedure and the N.C. Rules of Evidence apply. So, it is very similar to a trial.
The main difference is that the entire proceeding takes place at the arbitrator’s office (usually in a conference room or boardroom). The arbitrator is usually a seasoned domestic attorney or a former Judge. The proceeding is private, so the public is not made aware of it.
Some of the advantages of arbitration include: a. it is less time consuming than traditional litigation, b. it is less expensive than litigation (the parties usually equally divide the cost of the arbitrator), c. the case cannot get continued / bumped by other cases, and, d. every contested issue gets decided at arbitration (typically in one to two days)… so, there are no issues that need to still be tried later.
Arbitrations “work” 100% of the time in that all issues are resolved / finalized at this proceeding. That is another advantage. If you have a case that “just won’t end,” arbitration will end it.
The arbitrator renders his or her decision in the form of a written “Arbitrator’s Award” that one attorney or the other almost always has “confirmed” as an order of the court (thus making the end result virtually the same as if the parties had litigated the case in District Court).
Collaborative law starts with the parties to a domestic / divorce action signing a contract whereby they agree to NOT go to court against each other. They then agree to voluntarily exchange all documents and set up several “four ways.” Four ways are conferences where the attorneys and their clients all sit down together in one room at one table. They then attempt to resolve all issues in their case (as mentioned above – typically child custody, child visitation, child support, alimony, and the property division).
With collaborative law, as with the above other types of alternative dispute resolution techniques, the client needs to complete our major questionnaire, we put together a trial notebook (filled with the basic documents / evidence we need to resolve all issues in a domestic / divorce dispute), and plot strategy (before going to the first “four way”).
Collaborative law is typically more time consuming than the above three alternative dispute resolution techniques in that parties typically count on the process taking at least four sessions (the parties can agree to as many sessions as they want).
If the parties come to an impasse, they cannot continue to use the same attorneys (i.e. if the case fails to settle after x number of sessions, the parties would, in the normal course, file suit in District Court, but since they signed a contract not to do go to court, they have to both dismiss their current attorneys and start with new attorneys).
Rik and his attorneys have studied and applied N.C. family law. They can quickly determine where a Judge is likely to decide your case (if tried) and can then give you the protection you need. If your spouse is not inclined to do the right thing in an out-of-court or negotiated settlement, Rik and his team won’t hesitate to fight for you.
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