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Frequently Asked Questions about Mediation
Colleen Byers • Aug 29, 2023

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.

By Colleen Byers 06 Feb, 2024
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 .
By Colleen Byers 31 Jan, 2024
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:
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