colleen-byers-mediation

Amendments to the North Carolina Mediation Rules Effective January 6, 2025

Wed, 08 Jan 2025 19:40:58 GMT

What Attorneys and Mediators Need to Know

On December 11, 2024, the North Carolina Supreme Court approved a series of important amendments to the Mediation Rules and Standards of Professional Conduct for Mediators. Effective on January 6, 2025, these changes impact key aspects of mediation practice in North Carolina.

Below is a summary of some (although not all) of the recent amendments to the Standards of Professional Conduct for Mediators, and the Mediation Rules governing settlement procedures in Superior Court, Family Financial, and Clerk of Court matters. For comprehensive redlines to each rule set, visit https://www.nccourts.gov/news/tag/general-news/supreme-court-amends-mediation-rule-sets

Superior Court Mediation Amendments

New Mediator Designation Forms

See Rule 2(a) & (b)

There are now two separate forms for mediator assignment, depending on whether the mediator is party selected or court appointed. One form entitled Designation of Mediator By Agreement of Parties in Superior Court Action and Order of Appointment (AOC-CV-812) is for parties to designate a mediator of their choice, while the other form entitled Appointment of Mediator by Court Order in Superior Court Civil Action (AOC-CV-840) is for requesting a court-appointed mediator or for court staff to file a mediator appointment where the parties have been unable to agree on the selection of a particular mediator.

It is important to note that in order for any of the parties to designate a mediator of their choice, all parties, including but not limited to unrepresented parties, must agree to designate said mediator. If all parties have not expressed agreement to designate a particular mediator, then the parties and/or their counsel must use AOC-CV-840 to ask the court to select a mediator.

Attorney Signatures Removed from Mediated Settlement Agreement

See Rule 4(c) & Rule 10(c)(9)(b)

The requirement for attorneys to sign the final settlement agreement, alongside their clients, has been removed. Updates to the form Mediated Settlement Agreement (AOC-DRC-15 and AOC-DRC-16) are anticipated so be sure to use the most up to date forms in your mediations.

Party Designee Signature

See Rule 4(c)(4)

A clarification was made regarding the ability of a designee to sign on a party's behalf if the party does not attend the conference in person . A designee may sign the agreement on behalf of a party only if the party does not attend the mediated settlement conference in person and the party provides the mediator with a written verification that the designee is authorized to sign the agreement on the party’s behalf. The Dispute Resolution Commission’s Advisory Opinion AO 42 provides mediators with further guidance when a designee wishes to sign for a party who does not attend the mediation in person.

Substitution of Mediator

See Rule 7(c)

The form used to request mediator substitution by mutual consent of all parties has now been linked directly to Rule 7(c) (AOC-CV-836). This makes the substitution process more efficient and standardized.

Family Financial Mediation Amendments

New Mediator Designation Forms

See Rule 2(a) & (b)

Just like the Superior Court Civil Actions, the process for assigning mediators in family financial cases has been updated with two new forms. One form (AOC-CV-825) allows for party-selected mediators, and the other (AOC-CV-841) is used to request a court-appointed mediator.

Substitution of Mediator

See Rule 7(c)

The same update regarding mediator substitution applies here as in the other rules, with the relevant form (AOC-CV-836) linked directly to this rule.

Clerk of Court Mediation Amendments

New Mediator Designation Forms

See Rule 2(a) & (b)

Similarly to the other updates, the process for assigning mediators in matters before the Clerk of Superior Court has been divided into two forms. One form (AOC-G-302) is used for party-selected mediators, while the other (AOC-G-314) is used to request court-appointed mediators.

Attorney Signature Removal

See Rule 4(b)

As in the other rules, the requirement for attorneys to sign the final agreement with their client has been removed from Rule 4(b).

Mediator Confidentiality Amendment

Exception to Confidentiality

See Standard 3(d)(2)

This amendment creates an important exception to the general rule of confidentiality in mediation. Specifically, it allows a mediator to testify, give an affidavit, or tender an agreement if required not only by a statute (as previously excepted) but now also by a mediation rule promulgated by a state or federal agency. The change clarifies that a mediation rule also serves as the basis under which a mediator may be compelled to breach confidentiality.

Summary: What You Need to Do

As of January 6, 2025, the new and updated forms should be available for use at www.nccourts.gov, and it is important to ensure your practice aligns with these amendments. The most notable changes include the following:

Two different mediator designation forms,
Attorneys do not need to sign the settlement agreement, and
Revised mediator substitution form.

Managing Emotional Clients

Tue, 06 Feb 2024 20:38:46 GMT

Managing Emotional Clients

Colleen L. Byers collaborated with fellow neuroscience geek and mediator, Chris Osborn, to deliver this month’s Expert Continuing Legal Education (CLE) Series sponsored by the North Carolina Bar Association.

Colleen co-presented about the impact of trauma on clients in the legal system and shared some practical tools for managing difficult emotions within ourselves (as lawyers or as mediators) as well as with our clients.

View the CLE, which includes 1 hour of Mental Health/Substance Abuse credit in North Carolina here .

How to Negotiate Around Impasse Through Brainstorming Options

Wed, 31 Jan 2024 19:21:59 GMT

You have been mediating and negotiating all day long. You are fully invested and can sometimes glimpse the fragile light at the end of the tunnel. Suddenly, all the momentum that has been slowly building all day seems to come to a screeching halt. How do you avoid crashing into an unbreakable impasse?

First things first. Pause and take a deep breath.

Then take another deep breath for good measure.

Then get a sheet of paper and a pen. Along the left side of the paper, write the numbers 1 through 5.

Now, with pen in hand, ask yourself these questions and write the responses next to numbers 1 through 5.

What is the craziest idea I can think of to solve this problem?
What is the second craziest idea I can think of to solve this problem?
What is a variation of the other side’s idea that would work for me with an adjustment?
What is another idea?
What else might work?

You have now generated five new possible ways to solve this problem that you can share with the other side to keep the negotiation moving forward and avoid running straight into an impasse.

Let me give you a real-life example.

My daughters were fighting over the most coveted seat on the couch. The older child asserted, “This is my spot. I always sit here.” The younger child claimed, “But I was here first today!” Unsurprisingly, their attempts to persuade the other to acquiesce were unsuccessful. They are not old enough to engage lawyers to determine who had the stronger legal claim to the coveted seat on the couch but they both came running to me pleading their respective cases in hopes that I would serve as the arbitrator.

I declined to serve as an arbitrator but did put my mediator hat on. We all sat at the kitchen table with paper and pen to brainstorm possible solutions that would work for both of them. You may be wondering how I got my young children to do this. I told them that they could not watch any television until they found a solution to which they could both say yes. So down they sat with pen in hand. Using questions 1 through 5 above, as prompts, they generated the following ideas:

Take turns – alternate days;
Take turns – set a timer and then switch;
Sit on top of each other;
Build a fort on the couch for both of us.

Then we went back through the list one by one, and I asked each child if they were a “yes” or a “no” for that particular idea. Here is what that looked like:

Together, they explored multiple options and found the one that would work for both and proceeded to build their fort. If my children can utilize this conflict resolution strategy, then so can you!

How to Ask Better Questions

Thu, 30 Nov 2023 20:38:17 GMT

How to Ask Better Questions

Have you ever asked a question and then scratched your head at the response and wondered if perhaps you were not speaking the same language?

Have you ever been in a meeting and asked a question only to be met with blaring silence and blank stares?

Although we cannot control what may or may not come out of someone else’s mouth, we can follow a few simple steps to ensure that we ask better questions to set ourselves up for the most productive response possible.

Step 1 – Lead with Your Why

In one short sentence, tell the other person why you are asking the question. We previously outlined more details on how to accomplish Step 1 here .

Step 2 – Use Open-Ended Questions

Turn your internal interrogator off. No one likes being grilled and if they feel like you are interrogating them, they are going to clam up and not give you the information you seek. Instead, you open-ended questions. An open-ended question is one that does not suggest an answer.

Here is an example:

I value our working relationship. What do you need from me so we can meet this project deadline?

Here are a few key phrases to make part of your everyday life:

“Could you tell me more about that?”

“What do you think?”

“How are you feeling about ….”

“What makes you say that?”

“How will that help you/us with ….”

“What if we explored ….”

“What is your concern?”

Focus on using open-ended questions that start with “What” or “How” and watch the quality of the responses improve drastically.

Two Critical Considerations for Any Mediation

Sun, 01 Oct 2023 18:06:22 GMT

Two Critical Considerations for Any Mediation

There are 2 things you absolutely need to consider before any mediation. The first is your BATNA, or the Best Alternative to a Negotiated Agreement, and the second is your WATNA, or the Worst Alternative to a Negotiated Agreement. If you have not analyzed these prior to coming to the negotiation table, then you have put yourself at a disadvantage for the mediation.

How to Analyze Your BATNA

Step 1: If you do not reach an agreement during mediation, what is the very best possible outcome you (or your attorney) could achieve in Court?

In other words, if you are the Plaintiff, your attorney hits a grand slam and you are awarded all the compensatory (and punitive, if plead) damages you seek. If you are the Defendant, your attorney hits a grand slam and either blocks the Plaintiff from recovering anything or keeps the other side’s recovery to a minimum.

This is $X.

Step 2: If you do not reach an agreement during mediation, what is it going to cost you to achieve the very best outcome in Court?

In other words, how much will you pay in court costs, plus attorneys’ fees, plus expert witness fees, plus time away from work, plus stress, plus damage to important relationships, etc. for you to achieve the very best outcome in Court?

This is $Y.

Step 3: Calculate $X minus $Y and this is your BATNA.

How to Analyze Your WATNA

Step 1: If you do not reach an agreement during mediation, what is the very worst possible outcome that could happen in Court?

In other words, you (or your attorney) lose every argument in Court and the very worst happens. This is $A

Step 2: If you do not reach an agreement during mediation, what is it going to cost you to end up with the very worst outcome in Court?

Step 3: Calculate $A + $B and this is your WATNA.

If there are multiple different claims or causes of action to be negotiated, then you should conduct a BATNA and WATNA analysis for EACH separate claim. Then you should rank your claims so that you know which one has the best BATNA as well as which one has the worst WATNA.

Calculating your BATNA and WATNA in advance of mediation helps you understand the range of possible outcomes and offers measurable data points as you consider settlement offers throughout the mediation process.

Frequently Asked Questions about Mediation

colleen@byersmediation.com (Colleen Byers) — Tue, 29 Aug 2023 16:03:35 GMT

Here are the answers to some of the most common questions people ask about mediation in North Carolina.

1. What happens at mediation?

Mediation is an opportunity for the parties to tell the mediator what happened and how they feel about it. The mediator is a neutral facilitator who will listen to what everyone has to say and encourage the parties to find a solution to their dispute. In some cases, the parties will be in separate rooms and the mediator will go back and forth between the parties. In other cases, the mediator and the parties will all be in the same room and will discuss possible solutions around the same table. In either case, the mediator is not on anyone’s side but rather on the side of helping the parties to brainstorm solutions and make proposals to find a resolution.

2. Do I need a lawyer to go to mediation?

No. You do not have to have a lawyer to go to mediation. However, if you choose to go to mediation without a lawyer, you should know that the mediator is prohibited from giving you any legal advice.

3. Can a mediator draft our settlement agreement?

No. In North Carolina, a mediator is not allowed to draft a settlement agreement. If any party has a lawyer present during the mediation, then that lawyer can draft a settlement agreement. If no party has a lawyer present during mediation, then the mediator can prepare a non-binding summary of the parties’ understandings, which the parties can then take to a lawyer to subsequently turn into a final settlement document.

4. How long is mediation?

It depends. The length of mediation varies greatly among matters and is impacted by the number of issues to be discussed and resolved. The duration of mediation also depends on how prepared you are for mediation.

5. Is mediation confidential?

The mediator is bound by a duty of confidentiality and cannot reveal information about the mediation to anyone who did not participate in the mediation, except for the basic factual information needed to complete the mediator’s report to the court, if a lawsuit is already pending. The mediator never turns into a witness and never shares any information about settlement discussions with the judge or the jury. Additionally, a North Carolina rule of evidence protects the parties’ settlement offers from being admitted into evidence before the judge or the jury.

How to Prepare for Mediation

Fri, 09 Jun 2023 17:18:48 GMT

Does the thought of going to mediation make your heart race or fill you with dread? It can feel stressful to prepare for mediation, especially if you have no idea what to expect.

Here are a few suggestions to help you feel calm and prepared to have a productive dialogue at the mediation table:

Is North Carolina Going Back to In-Person Mediation?

Tue, 02 May 2023 18:04:58 GMT

As of May 1, 2023, mediation conducted by remote technology is no longer the default method in North Carolina. Instead, the method for mediation depends on the mediator and the parties in each case. The scope of this article is limited to the following programs administered by the North Carolina Dispute Resolution Commission:

Mediated Settlement Conferences in Superior Court;
Family Financial; and
Clerk of Court.

A little historical context is important to understand the significance of these rule changes. Prior to the COVID-19 pandemic, the mediation rules in North Carolina heavily favored in-person mediations. In 2020, as a result of the COVID-19 pandemic, the North Carolina Supreme Court adopted amendments to the North Carolina mediation rules, which made mediation by remote methods the default rule, unless either: the parties and the mediator agreed otherwise; or the court ordered otherwise. Many lawyers and mediators alike feared that the rules would revert back to the pre-pandemic preference for in-person mediations. However, the current amendments allow for greater flexibility on a case-by-case basis while still providing definitive guidance in the event of disagreements about the method by which the mediation will be conducted.

Colleen Byers, JD, MBA Admitted to National Academy of Distinguished Neutrals

Tue, 03 Jan 2023 19:04:25 GMT

Colleen Byers is proud to have been admitted as a Member of the prestigious National Academy of Distinguished Neutrals (NADN). “All Academy members are distinguished by their commitment to excellence in the field of dispute resolution.”

The NADN is an invitation-only professional organization for experienced mediators “who are well established as trusted neutrals among the legal community within their state of practice.” For Membership, the “Academy members have been found to meet stringent practice criteria and are amongst the most in-demand neutrals in their respective states, as nominated by both peers and litigation firms.”

“Guiding individuals, multi-generational family businesses, and families through the mediation process toward mutually beneficial outcomes is an honor and a privilege,” says Byers. “I’m looking forward to helping more clients find clarity, peace of mind, and practical solutions in the year ahead.”

3 Tips For Greater Influence and Impact

Thu, 01 Dec 2022 23:50:50 GMT

Do you know you need to have a difficult conversation and it fills you with dread?

Would you like to have a high stakes conversation but aren’t sure how?

Do you want to influence an outcome but every time you try to talk with the other person, you leave feeling frustrated, unheard, misunderstood, and seething with anger?

Here are 3 tips to communicate for greater influence and impact, whether that is with your partner, your boss, or your team.

1. Know Your Goal

Before you engage in any important conversation, first take some time to think carefully about what you hope to accomplish by the end of the conversation. If you do not know where you want to go, then you will never be able to chart a course to get there. So ask yourself:

If I had a magic wand, what would the ideal outcome of the conversation be?

What am I really trying to accomplish with this conversation?

What do I want the other person to start, stop, or change?

Once you know exactly where the goal line is, then you can utilize the other tips to prepare a strategy to get you there.

2. What’s In It for Them?

Too often, when we are trying to influence or persuade, we suffer from myopathy. We only look at the issue from our own perspective. In order to increase your effectiveness, you need to flip the script and consider the issue from the perspective of the other person. Standing in their shoes, ask yourself:

Why should they agree with me?

What motivates them?

What is important to them?

How could this benefit them?

Then include the most compelling reasons why they should agree with you in your conversation. Do not assume that they will think of the ways in which something might actually benefit them. Explicitly connect the dots for them.

3. Rehearse

Practice what you are going to say and how you are going to say it. You can do this with a coach or trusted friend. You can talk to yourself in the mirror. You can record yourself on Zoom and watch it back. After each practice session, ask yourself:

What went well?

What do I want to change?

Then practice some more. Practice until it flows out of your mouth with ease and there is nothing you would like to change.

Implementing any one of these 3 tips will instantly increase your influence, improve your outcomes, and perhaps even enhance your relationships.

If you are ready to gain clarity and confidence in order to maximize your influence before your next important conversation, I’d love to support you. Book a consultation with me .

Colleen Byers Mediation, LLC Celebrates 1 Year in Business

Thu, 29 Sep 2022 17:29:29 GMT

Reflecting on a Year of Successful Mediations

Celebrate the first anniversary of Colleen Byers Mediation, LLC, is an opportunity to reflect back on the year’s successes, while looking forward to helping clients successfully and collaboratively solve disputes in the years to come.

Since opening in August of 2021, Colleen Byers has mediated 43 cases with an 81% settlement rate. When not working with clients, Colleen has shared her expertise in the area of mediation with peers in the legal community, appearing at nine speaking engagements and recording five podcast interviews, including an engaging conversation with the host of the #1 Negotiation Podcast—Negotiate Anything.

In addition to offering mediation services, Colleen serves as a professional development coach and consultant for legal, healthcare, and financial services professionals. In the past year, she has taken on four new coaching clients, helping them to more confidently communicate their messages to build trust and influence outcomes.

“I’m privileged to help professionals improve their communication skills and build confidence, as well as guiding individuals, multi-generational family businesses, and families through the mediation process with a path toward mutually beneficial outcomes,” says Byers. “I’m looking forward to helping more clients find clarity, peace of mind, and practical solutions in the year ahead.”

Air Travel and the Subtle Art of Influence

Fri, 12 Aug 2022 16:28:27 GMT

A story about what a delayed flight can teach us about the art of influencing outcomes.

Air travel can be a real challenge.

It wreaks havoc on our universal and very human needs for certainty and autonomy.

It is not easy to surrender to the process.

It is not easy to relinquish the ability to influence certain outcomes - like whether your plane is delayed because of weather.

Recently, when our 5-hour flight landed a full hour late, well past bedtime, in the midst of a summer thunderstorm, and we heard the glorious ding of the seat belt sign turning off, the majority of the passengers remained seated to allow those with now almost impossibly tight connections to race to the front of the aircraft.

Here are the top factors that influenced hundreds of tired passengers to let others disembark ahead of them:

1) Acknowledgement

From initial boarding through landing, the pilot acknowledged not only what was happening but also the impact it was having on the passengers, and committed to doing everything he could to attempt to safely make up some of the lost time in the air.

2) Information

Early and often, the pilot and the flight attendants freely shared detailed information about the various causes of the delays, the new expected arrival time, and the updated gate information.

3) Personalization

The flight attendant asked anyone with a tight connection to raise their hand so that others could see exactly who was being impacted.

4) Request Rather Than Demand

There was a request to allow others to deplane first. A request allows others to freely choose their response.

Turns out the majority of the plane chose to fulfill their needs for relatedness and to be a contribution to others.

Where, in your life, could acknowledgement, information, personalization, or a request positively influence an outcome?

Instantly Improve Your Negotiation Skills

Wed, 20 Jul 2022 18:46:31 GMT

A Simple But Effective Negotiation Tip

Do you ever feel like you are talking but no one is listening?

Do you ever feel like you meet unmovable resistance when you are trying to influence a particular outcome?

Do you want to instantly improve your negotiation skills?

Then lead with your why.

Let the other person know what matters to you and why it matters to you.

The other night, after I wished our daughter "good night" (for the tenth time), I closed her bedroom door and turned off the light in the hallway.

When I walked by several minutes later, I noticed the hallway light was on. Not giving it much thought, I turned it off.

A little while later, I noticed the hallway light was on - again!

I frowned but before I got carried away by my own frustration and righteousness, I saw this handwritten note from my daughter:

"I like this light on because it makes me feel close to you guys ... it makes me feel just like you guys are beside me."

When it was just about two opposing positions, ie: light on vs. light off, it was easy to become entrenched in asserting my agenda.

When my daughter led with her why, and shared with me what was important about her desire to leave the light on, she made it easy for me to acquiesce and almost impossible to remain entrenched in my position.

Which high stakes conversation could you improve by sharing with the other person why your request matters so much to you?

Contested Guardianship Proceedings Mediation

Thu, 02 Jun 2022 20:47:27 GMT

5 Key Considerations for Mediation in Contested Guardianship Proceedings

Imagine this …

Scenario 1: Estranged siblings are fighting over who should make health and financial decisions for their cognitively declining parent.

Scenario 2: Children of dad do not trust dad’s second wife to make decisions for dad, especially when they believe she is just out to secure his money.

Scenario 3: Divorced parents of adult special needs child disagree about the adult child’s treatment plan and the best way to financially support the adult child.

Each of these scenarios, or a derivation thereof, find their way into lawyers’ offices and before the Clerk of Superior Court in the form of a special proceeding. Contested guardianship proceedings can be intense and fast paced. They are rife with family conflict and there is usually a time-sensitive need for a legal determination, whether that need is driven by financial or medical reasons.

North Carolina has a long history of encouraging and supporting lawyers to find judicially efficient and economical means of solving their clients’ legal problems. An underutilized but effective avenue to consider in contested guardianship proceedings is mediation.

1. Why Mediate a Guardianship Dispute?

Mediation is quick, private, and allows for more creative resolutions.

A. Quick.

When a guardianship matter will actually proceed to a hearing depends on several factors, including the size of the jurisdiction, the existing case load and schedule of both the hearing officers and the Guardian ad Litem, and the number of continuances granted. Depending on the circumstances, the parties and their counsel may be able to get to the mediation table months before a hearing. The expediency of mediation benefits clients who have little understanding of or patience for how slowly the wheels of the halls of justice actually turn. Additionally, a swift resolution minimizes the emotional toll of a contested proceeding on all interested parties, particularly the alleged incompetent, who is often particularly fragile.

B. Private.

Mediation is private and confidential, which is appealing to many clients, whether they are high net worth clients, there are sensitive issues involved, or they simply value their privacy. Unlike a hearing, there is no transcript of a mediation. On the contrary, any stenographic, audio, or video recording of the mediation process by any participant, either surreptitiously or with consent, is strictly prohibited under Rule 4(f) of the Rules for Mediated Settlement Conferences and Other Settlement Procedures in Superior Court Civil Actions. In addition to Rule 408 of the North Carolina Rules of Evidence, NCGS § 7A-38.3B(g) expressly provides, “[e]vidence of statements made or conduct occurring during a mediation conducted pursuant to this section, whether attributable to any participant, mediator, expert, or neutral observer, shall not be subject to discovery and shall be inadmissible in any proceeding in the matter or other civil actions on the same claim …” The statute does provide limited exceptions, including an exception that allows for a mediated settlement agreement to be presented to the clerk for approval, as discussed in section 3 below.

C. Creative.

Crafting a resolution through mediation allows the parties and their counsel an opportunity to better understand each other’s interests, and to find more creative and outside the box resolutions than a Clerk may consider. For example, the parties may agree to parameters regarding visitation with the alleged incompetent, which some clerks shy away from altogether but especially at the initial hearing. This could prevent future discord as well as limit the time and expense of future motions practice.

2. Who Can Request Mediation in a Guardianship Proceeding?

The Clerk, on his/her own motion, or any party, interested person, or fiduciary in the matter pending before the Clerk of Superior Court, may move for an order to mediate. See NCGS § 7A-38.3B ; Rule 1(c)(3) of the Rules of Mediation for Matters Before the Clerk of Superior Court; AOC-G-300 ; and AOC-G-301 . To facilitate a more economical, efficient, and satisfactory resolution of the matters within the clerk’s jurisdiction, the clerk has the discretion and authority to order that mediation be conducted in any matter in which the clerk has exclusive or original jurisdiction, except for matters under Chapters 45 and 48 of the General Statutes and except in matters in which the jurisdiction of the clerk is ancillary. See NCGS § 7A-38.3B(a) & (b).

As in Superior Court cases, once a guardianship is ordered into mediation, the parties may designate a preferred mediator, using AOC-G-302 , or ask the clerk to appoint a mediator. Party designated mediators are selected by the parties and set their own rate of compensation. Court-appointed mediators serve at the court-appointed rate, which is currently $150.00 per hour, plus a one-time administrative fee of $175.00.

3. Who Can Approve a Settlement?

Although it may seem obvious, do not forget that the interested parties can never stipulate to incompetence. Even when the only thing quarreling siblings can agree upon is the fact that elderly mom or dad is incompetent, they cannot stipulate to incompetence. They may, however, privately agree not to object to any finding of incompetence by the Clerk, who still must make findings of fact, based upon the evidence presented—even if that is derived solely from the Verified Petition and the Report of the Guardian ad Litem—that support an adjudication of incompetence.

Any agreement reached in a guardianship proceeding requires written approval by the Clerk of Superior Court. NCGS § 7A-38.3B(i)(2) provides, “[i]n matters before the clerk in which agreements are reached in a mediation conducted pursuant to this section, or during one of its recesses, those agreements shall be treated as follows … In all other matters before the clerk, including guardianship and estate matters, all agreements shall be delivered to the clerk for consideration in deciding the matter.” In fact, Rule 4(b)(2) of the Rules of Mediation for Matters Before the Clerk of Superior Court requires all written agreements reached in guardianship matters to include the following language in a prominent location in the document: “This agreement is not binding on the clerk but will be presented to the clerk as an aid to reaching a just resolution of the matter.”

4. Who Pays the Mediator’s Fees?

NCGC § 35A-1116(c1) provides that mediator fees and other costs associated with mediation shall be assessed in accordance with NCGS § 7A-38.3B. Pursuant to NCGS § 7A-38.3B(f) , costs of mediation shall be borne by the named parties, interested persons, and fiduciaries ordered to attend the mediation. Absent agreement to the contrary, costs are apportioned pro rata among those ordered to attend mediation. If everyone agrees that the mediator’s fees should be paid from the respondent’s estate, then a written order from the Clerk making specific findings of fact justifying the taxing of the mediator fees and costs to the alleged or adjudicated incompetent’s estate is required. Such a provision can be found in AOC-G-304 – Order for Apportionment of Mediator Fee in Matters Before the Clerk of Superior Court.

5. How to Find a Clerk of Court Certified Mediator for Your Guardianship Matter.

The North Carolina Dispute Resolution Commission is responsible for numerous different mediation programs. One of the most well-known programs is the Superior Court Mediation Program, but there is a separate program, requiring additional training and certification, to mediate matters pending before the Clerk of Superior Court, including guardianship and estate proceedings. Through its website, the North Carolina Dispute Resolution Commission maintains a searchable list of mediators who are certified in the Clerk Mediation Program.

Mediation of contested guardianship matters is an opportunity for each party and interested person to tell their side of the story to a neutral facilitator who will listen intently and empathize with their respective struggles and frustrations. Mediation offers a chance for information to be exchanged and new insights gleaned that just might be the crack in the door needed to find a resolution everyone can make peace with.

2 Simple Steps to Negotiate Around Impasse

Tue, 05 Apr 2022 17:47:58 GMT

When Negotiating, Plan a Strategy Around the Impasse

One of the worst ways to start a negotiation is by telling the other person that they or something they believe is wrong.

Party A: I believe X.

Party B: X is categorically untrue.

Don’t rush headlong into the impasse.

Plan a strategy AROUND the impasse.

Step 1: Acknowledge that Party A believes X.
Note you can acknowledge without agreeing.

Step 2: Ask Party A for THEIR ideas about how to handle X.

Here’s an illustration.
(Yes, all my good illustrations continue to come from my children).

4-year-old [waking me up at 2am]:
“There are bees in my bed!”

Here is where telling her that there aren’t any bees in her bed is not going to get me any closer to my goal of getting us both back to sleep.

Me: "Oh no, there are bees in your bed!?"
[Step 1 – Acknowledgment]

4-year-old [nodding with wide eyes]: "Yes!"

Me: "What do you want to do about the bees in your bed?"
[Step 2 – Seek HER ideas]

4-year-old: "I want you to shoo them away."

Me: "I can do that."

I proceeded to shoo away imaginary bees, a solution to this problem that never would have occurred to me had I not asked for her ideas about how to solve the problem.

Bonus: I didn't waste precious time running straight into the impasse by trying to reason my way through things with a scared 4-year-old at 2am.

Negotiation outcomes:

1. 4-year-old was satisfied and no longer scared.
2. We both got back to sleep in record time.

Win-Win.

How to Build Trust in Mediation

Tue, 15 Feb 2022 22:55:03 GMT

Authenticity and Empathy Are Critical in Mediation

Without trust, our teams will perform poorly.

Without trust, our relationships will suffer.

Without trust, a mediator will be unsuccessful in facilitating a resolution.

In a brilliant TedTalk , Harvard Professor Frances Frei describes the 3 components of trust:

Authenticity – You have to believe I am being authentic;
Rigor in my logic, and
Empathy – You have to believe my empathy is directed toward you.

When any of those wobbles, Frei asserts, we have a trust problem.

Guess which one she says tends to wobble the most?

Empathy.

Empathy is the ability to sense other people’s emotions, and to imagine what they might be thinking or feeling. Empathy is fundamental to creating a space during mediation for each party to feel heard and understood; for their perspective to be considered; and for their experience to be honored.

The good news is that Frei has a powerful antidote to the malady of an empathy wobble.

The bad news is that it requires a good, long look in the mirror.

Frei’s antidote (around the 5:52 mark in her TedTalk) involves identifying “where, when and to whom you are likely to offer your distraction. That should trace pretty perfectly to when, where and to whom you are likely to withhold your empathy.” Then employ a trigger, which becomes a habit, that causes you to look up from your distraction and to calm the empathy tremors that threaten to shake the critical foundation of trust.

Mediation and Language

Mon, 03 Jan 2022 21:24:32 GMT

“You’re Blocking Me”

A man tapped on my car window and said, in a gruff tone, “You’re blocking me.”

I immediately felt defensive. This was a threat to my identity as a kind, thoughtful and considerate human being. My knee jerk reaction was to think to myself, “I’m just trying to have a nice outdoor lunch with a friend. How dare you accuse me of doing something wrong!”

I had no intention of blocking his truck or impeding his hard work. I was not parked in front of any driveway. However, as I looked in the direction he was pointing, taking in the enormous construction dumpster and other construction equipment that I had previously not paid any attention, the reality was that my vehicle was, in fact, hemming his truck in.

Add to this the fact that I had already circled the block a couple different times looking for a precious parking spot. There was nowhere else in the nearby vicinity to park so I felt like I had no other viable options for moving my vehicle.

Fortunately, I’m a mediator with a regular meditation practice so I paused and took a deep, cleansing breath. The next thing he said was this, “I’m almost finished loading and then I need to move my truck through this area. Could you just give me a minute and then you can park here?” I immediately felt my body relax.

Let’s examine the difference between the two statements and their effectiveness:

The first statement: “You’re blocking me.”

Accusatory – the other person raises her shield and prepares to fight back;
Focused on what the other person is doing; and
Does not include any specific request of the other person.

The second statement: “I’m almost finished loading and then I need to move my truck through this area. Could you just give me a minute and then you can park here?”

Non-accusatory – shields stay lowered;
Focuses on what the speaker needs; and
Includes a clear, measurable request to which the other person has an opportunity to say “yes.”

How often do parties in conflict come to us with an analogous situation? They are stuck in a cycle of defending their good intentions against each other and feeling like they have no other options. As mediators, we can help the parties keep their shields lowered so they can connect with the valid needs and interests of each other for a chance to find an opportunity to say “yes.”

Successful Mediations Entail Appreciating Other Perspectives

Tue, 21 Dec 2021 18:43:19 GMT

Making Space for the Perspective of Another

My four-year-old, Lainey, excitedly shared this drawing with me & declared,

“This is baby Lainey!”

I had no earthly idea what she was talking about.

So I used a communication tool called looping, where the confused listener (here, that was me) seeks clarity and understanding by asking an open ended question that incorporates some of the same words the speaker just used.

I said, “That’s baby Lainey?”

She said, “Yeah.” Although her tone implied this was obvious, she did not immediately offer any further insight or explanation to help her confused mother.

So I waited. I kept my mouth shut and sat in the uncomfortable silence.

The space I created allowed her the time and the opening to soon continue telling me,

“That’s baby Lainey before she was even born… in an egg.”

Got it. Now I have a much better understanding.

I could have immediately told her that she was wrong. That this depiction was not a drawing of a human infant, which is the definition I immediately attached to her use of the phrase, “baby Lainey.” Instead, I looped and I paused as I waited for her to offer me more about her perspective and to enlighten me to her different and equally valid definition of “baby Lainey.”

And that made all the difference.

4 Sure Fire Ways to Torpedo Your Mediation

Mon, 01 Nov 2021 19:27:43 GMT

For Successful Mediation, Avoid These Four Negotiation No-Nos

If you’re going to spend the time and the money to go to mediation, you may as well make it worth your while. To make it worth your while, it’s best to avoid these 4 negotiation faux paus.

1. Don’t Prepare .

With full recognition of the constraints of client resources, it is important to figure out some way to adequately prepare for mediation prior to mediation day. What is the bare minimum preparation needed for a mediation that is worth your while?

Make a list of all the pending claims, counterclaims, and crossclaims;
Review the pattern jury instructions for each pending claim on the list;
Consider how the facts of this case line up with the pattern jury instructions for each pending claim;
Calculate your client’s best possible outcome at trial and communicate this to your client; and
Calculate your client’s worst possible outcome at trial and communicate this to your client.
Review your notes about any prior settlement offers.

2. Demand Better Than Your Best Day .

After you have prepared for mediation day, do not start things off on the wrong foot by communicating an opening offer that exceeds your client’s best possible outcome at trial. Not only will this not get you anywhere, but it will also set you back in terms of time, cost, and credibility. At best, it will cost you time and money as the mediator works extra hard to get the other side to come back to the negotiation table. At worst, it will torpedo the entire mediation and end in a premature impasse.

3. Go Backward .

If you have done the minimum preparation in #1, then you will know the benchmarks you and the other counsel have set through any prior settlement offers. Do not make an opening offer at mediation that is less than a relatively recent pre-mediation settlement offer unless you are prepared to also provide a compelling reason (ie: protracted discovery expenses between offers) as to why you are backtracking. Otherwise, this is a sure fire way to offend the other side and torpedo the mediation quickly.

4. Don’t Listen .

If either side refuses to listen, then the mediation will stall out and likely tank. Across the nation, patience is wearing thin. People are quick to interrupt each other and the occasional Zoom lag certainly does not help. It is understandable that your client believes strongly in their narrative and they need to know you, as their lawyer have their back. But what is the harm, in private session in mediation, of considering (without even conceding), that the other side might have 1 or 2 good facts or legal arguments? After all, listening might help you to learn what is important to the other side, which might be the key to unlock a resolution you could easily live with.

If you’re looking for an experienced mediator in the Winston-Salem area, contact Colleen Byers Mediation today .

The Role of Wonder

Wed, 01 Sep 2021 15:47:25 GMT

I Wonder Why

Do you ever dismiss someone’s belief because you know – beyond any shadow of a doubt - that it’s wrong?

Do you ever write someone off without wondering what forms the basis of their belief?

It’s easy to do. We are all moving in a million different directions.

You see, I almost did that to our 6-year-old daughter. The topic was minor but if I dismiss her on minor things, will she feel safe enough to come to me about major things? Here’s what happened:

On the way to dropping her off for the first day of first grade, I asked the typical question,

“How are you feeling about the first day of school?”

Part of her reply was to inform me that she's sitting all alone in the classroom. Because we had recently been to open house and I saw the desks arranged in clusters of three, I immediately responded,

"No, you're not, there are two other desks near you." She said, "those are kids from last year who are in 2nd grade now."

I couldn't understand how on earth she had drawn that conclusion. Rather than tell her she was absolutely wrong (old litigator habits die hard), I asked her what led her to think that. She explained that, when we were in her classroom for open house, the two desks closest to her did not have bubbles on them like hers had.

"Oh!" I said (light bulb turning on), "those children must have already come to open house before we arrived, and they took their bubbles with them. You're not going to be sitting alone, sweetie."

I could have (and almost did) dismiss my daughter’s conclusion as completely without merit. As a litigator, I frequently dismissed things that clients and opposing counsel said because I was in possession of facts or evidence that clearly contradicted their narrative. As a mediator, I know that one of the most important ways I can provide value to the dispute resolution process is to wonder why someone is saying something or what leads them to draw a certain conclusion.

It is only when we are curious that we begin to scratch the surface of what is really going on underneath. It is only when we leave plenty of room for wonder that we can uncover the thoughts, the perspectives, and the narratives of someone else. What we may immediately react to as wholly unfounded is usually rooted in something, somewhere deep along the causal chain. If we can keep our judging and dismissing at bay long enough to allow wonder to work its magic, we just might find the key that unlocks the door to a resolution.

Now I Know How It Feels

Sun, 01 Aug 2021 07:19:08 GMT

Empathy is commonly defined as the ability to understand and feel what someone else is feeling.

“Now I know how it feels,” said our six-year-old daughter. Despite the fact that she had just been stung by a yellow jacket for the first time, in the middle of a parking lot, on a humid August morning, as she nervously walked toward the door on her first day of camp, my heart swelled. It was one of my proudest parenting moments. Through her tears, she connected with the shared pain and suffering of her cousin, who she recalled had been stung by a bee earlier in the summer.

Empathy is commonly defined as the ability to understand and feel what someone else is feeling.

Sympathy ≠ Empathy

I’m not talking about sympathy, which is commonly defined as feeling pity or sorrow for someone else’s situation. Rather, I’m talking about empathy, which requires me to connect with something inside myself and my own experience that knows the feeling you are currently experiencing. Research Professor Dr. Brené Brown shows us the difference between sympathy and empathy in this short video.

Empathy is quite possibly the single most important trait of an effective mediator because it creates a space where the parties in conflict can feel heard and understood. Nursing scholar Theresa Wiseman has adeptly identified the following four qualities of empathy:

Perspective taking;
Staying out of judgment;
Recognizing emotion in other people; and
Communicating back the emotion you see.

Once the parties in conflict feel understood, there is an opening for problem solving because the parties can take a break from the metaphorical jumping up and down that accompanies a desperate desire for their experience and perspective to be acknowledged in a way that shows the mediator really understands their feelings and experience.