4 Ways to Avoid Going to Court When Getting Divorced in North Carolina

When faced with family law issues, going to court might seem like the only option. But there's a more peaceful and often more effective way to resolve disputes: Alternative Dispute Resolution (ADR). In North Carolina, ADR methods like mediation, arbitration, collaborative law, and using a referee are effective alternatives to litigation, but each comes with its own pros and cons. Let's break down each one to help you make informed decisions about your situation.

Mediation

Mediation involves a trained mediator or an experienced family law attorney who acts as a neutral third party to help you and your spouse find common ground. The mediator listens to both sides, identifies the obstacles to settlement, and guides you toward a mutually agreeable solution.

In North Carolina, mediation includes the mediator, both spouses and their attorneys. Unlike in some states, your attorneys are present to provide legal advice, as the mediator cannot offer this. This setup ensures you're making informed decisions and can draft legally binding agreements on the spot. Your attorney is there to advise you on any agreement and make sure you understand the legalities of the proposed agreement.

While every county differs, in Wake County, mediation involves you sitting in two different rooms, both you and your spouse with your attorneys, and a mediator going back and forth trying to come up with a settlement. Of course, you can mediate without attorneys, but we highly advise against it since you will lose the benefit of receiving legal advice about the proposals or your next offer and because no binding documents can be drafted and signed in mediation if a lawyer isn’t there to prepare them.

A mediator can dig deeper into the "why" behind divisive issues to figure out what’s most important to both parties. The “why” behind what’s important to people is usually what can help bring a resolution that may have seemed impossible.

For example, a simple apology from one party to the other or someone assuming responsibility may be all it takes to resolve a dispute. It is important to note that a mediator isn’t going to make any decisions for you but will listen and direct the process to resolve challenges.

Pros

• Mediation is usually a quicker process than litigating in court
• Avoiding litigation saves you money
• You and your spouse remain in control of the outcome, not a judge
• Mediation is confidential, so couples can discuss all matters of their divorce without airing their laundry in a public courtroom.

Cons

• Compromise and thorough decision-making are necessary for mediation, but if you don't take your time, you may end up with buyer's remorse.
• It takes two people to agree, so there's no guarantee you'll avoid court. If an agreement can't be made, court might still be necessary.

Arbitration

Arbitration is like having a private judge. An arbitrator listens to both sides, reviews evidence, and makes a binding decision. You can start with mediation and switch to arbitration if needed, allowing the mediator to become the arbitrator. However, remember that confidentiality rules change in this switch.

Remember, things cannot be said in total confidence to the mediator because that person will later be your arbitrator and will be able to consider all evidence, including what was shared in mediation. The arbitrator will need to question you about those things so that the other side has an opportunity to hear them and respond.

Pros

• According to North Carolina’s Family Law Arbitration Act , an award must be rendered within 30 days of the last date of arbitration. Note that scheduling may take some time, though, as at least five (5) people’s calendars have to be coordinated.
• An arbitrator controls the order of things, so there's less waiting around. Also, witnesses can be taken out of turn and scheduled in advance, saving them time (and more legal fees).
• You work with someone who understands your situation and the nuances of North Carolina’s family laws, which is not necessarily always the case with a judge, unfortunately.
• Like mediation, arbitration offers the benefit of privacy.
• The decision made by an arbitrator is binding and final. It is typically only subject to review or appeal on a few issues, and the right to a review or appeal can be waived.

Cons

• The cost can add up. When you use an arbitrator, you have to pay the arbitrator’s fees, whereas the judge is a public official funded by tax dollars.
• Because an arbitrator’s ruling is final, there is no right to appeal it.

• Arbitration must be consented to by the parties and cannot be court-mandated.? So, if the other party doesn’t agree to arbitration (or hasn’t agreed to it in advance), there is no way to force them.

Collaborative Law

In the collaborative law process, each person hires a lawyer and signs a pledge not to go to court. If they do go to court, they have to fire their current lawyers. This is to discourage people from going to court, as they’d have to restart the process with a new lawyer, which can be strenuous, time-consuming, and costly. The goal of collaborative law is to avoid litigation and reach the best resolution possible for the family.

It involves meetings between each spouse and their attorneys and often includes divorce coaches, financial planners, and other specialty professionals, such as tax advisors, therapists, and real estate experts. Traditional collaborative law hasn't really caught on in North Carolina yet.? We think that’s, in part, because we find ourselves, at least at our law firm, being really collaborative naturally. We don’t like to play games with other attorneys. We are truthful and authentic because that is what gets us the best results for our clients.

While collaborative law offers the benefit of privacy and can work for some couples, it isn’t ideal for contentious situations. In our opinion, not many people want to or can work collaboratively with someone they can’t stand to be in the same room with, whether it’s for reasons of betrayal, resentment, violence, substance abuse, or ongoing conflict.

Referee

A referee is a court-appointed person that takes and receives evidence and then provides a judge with a written report regarding what they think the judge should do on a particular issue. Often, judges prefer not to handle the division of smaller household items in a divorce, like kitchen appliances, furniture, personal belongings, etc. They’d send these items to a referee and allow them to decide what is and isn’t marital property, what the value of each thing is, who should get them, and then report back to the judge. The judge is likely to sign off on that report unless a party takes issue with what’s been recommended by the referee.

When it comes to a referee, the biggest pros and cons are the same – their decision isn’t final. It is simply an opinion given to the court. The court is not bound by the referee’s ruling. On one hand, this can add a layer of uncertainty, as a final decision rests in the hands of a judge; on the other hand, the lack of finality allows parties to challenge the referee’s report if they believe it to be unfair, which could lead to a different result.

Compensation of the referee may also be a con, as the fees might be greater than many of the items in dispute.?Of course, paying lawyers to be in court to argue over household goods can also be cost-prohibitive. A pro is being able to resolve these matters outside the formality of court and having a referee session much faster than a court date can typically be scheduled.

How Triangle Smart Divorce Can Help You

If you and your spouse have decided to part ways and you’re considering your options for Alternative Dispute Resolution, Triangle Smart Divorce can help you find the right fit for your unique situation. Our experienced family law attorneys will take the time to listen to your story, understand your goals, and develop a strategy that will help you reach your ideal outcome. Call now to request a consultation and discover your next steps.