Term Paper on "Mediation Qualification Law"

Term Paper 5 pages (1749 words) Sources: 3

[EXCERPT] . . . .

Mediation Law and North Carolina

Mediation Law

Mediation Qualification Law and North Carolina

The state of North Carolina has defined mediation in its legislation as an unofficial process facilitated by a mediator whose goal it is to help all parties voluntarily reach a mutually acceptable resolution to their dispute (Clark, Ellen, McCormick, 1996). Mediators are intended to play the role of a neutral third party that can help the individuals create their own settlements (Clark et al., 1996). A mediator does not have the authority to determine or assign a settlement rather they lead the parties through a structure process during which solutions can be generated (Clark et al., 1996). Mediation requires collaborative efforts on the part of all parties in order to ensure an agreeable outcome.

Some jurisdictions have attempted to gain the cooperation of all parties and ensure the efficiency of the process through the use of good faith requirements (Zylstra, 2001). These mandates attempt to ensure an acceptable level of participation is achieved in the mediation process and that each party has the opportunity to fully engage in all aspects of the mediation and settlement design process (Zylstra, 2001). This mandate came out of a federal court ruling to enact an amendment to Federal Rule 16 in 1983 that allows for the court to sanction parties who do not participate in good faith in court-ordered mediation (Zylstra, 2001). This process allows the judicial system to have oversight and information regarding the participation of parties, the mediation process itself, and the settlement reached. Failure to mediate in good faith can in some jurisdictions result in the imposing of sanctions on the offending party (Colltri, 2004).

The good faith controversy in mediation is what that has been addressed differently by individual states. At the center of this issue is how such court regulation of the mediation process impacts the ability of a client to expect confidentiality in the mediation process. Opponents argue that good faith participation may not allow for satisfaction of all parties due to the decrease in self-determination that occurs when the judicial system is evaluating the depth of a party's participation (Boettger, 2004). Further it has argued that the judicial oversight has taken an informal mediation process and linked it back to formal judicial processes (Zylstra, 2004). On the other hand, proponents of good faith mediation claim that it ensures that the process is free of coercion and that the mediators are handing the process in a competent and ethical manner (Colltri, 2004). Lande (2005) articulates that advocates for good-faith mandates believe that it will guarantee that court order mediation has reliability. Further it is believed that these requirements make it more likely that each party will cooperate and aids in the appropriate use of mediation (Lande, 2005).

Opponents are concerned that the good faith mandates will impact the confidentiality of the mediation process. Traditional mediation proceedings have held an expectation of confidentiality in order to allow for open communication without the fear of repercussions (Colltri, 2004). At times mediators have utilized confidentiality agreements to ensure confidentiality is maintained and that the mediation process is a safe one for all parties. However, these agreements many times will not hold up in court and the parties can be called to testify despite their agreement to keep the mediation process private (Colltri, 2004).

When designing its mediation program in the early 1990s, North Carolina decided not to include a good faith requirement in its statues or regulations and instead focused on attendance requirements (Clarke et al., 2004). This was based on the belief that if courts mandated the proper cases to mediation and were careful about this process then mediation would be successful and there would be no need for good faith requirements (Clarke et al., 2004). However, it is important to note that parties oftentimes are compelled to participate in mediation, particularly in civil disputes, in North Carolina, it is the ability to reach a resolution that is voluntary (Clarke et al., 2004). Participation in mediation does not prohibit parties from taking a legal route afterwards if they choose to do so.

Over the last two decades, mediation has become common in North Carolina encompassing a significant number of programs many of which are based upon federal requirements. In fact all superior court civil disputes are now subject to mandatory mediation except in instances of extreme cases that are not best serviced through the mediation process (Clarke et al., 2004). Divorce cases that involve disagreement over equitable distribution of assets are also ordered into mandatory mediation (Clark et al., 2004).

Mediation in North Carolina is conducted by both attorney and non-attorney mediators and the state legislature has established guidelines for the practice and requirements of each. In addition these regulations are specialized to a variety of issues and settings. This oversight is provided by the Dispute Resolution Commission (DRC) that was enacted by statute to certify and regulate mediators who provide services to the court system.

The North Carolina (DRC) certifies mediators who are then authorized to conduct settlement conferences between parties. Parties are also able to select a non-certified mediator for their process, however, court approval must be obtained. If a court appoints a mediator that individual must be certified. Even in an instance where a mediator is appointed by the court parties still have input into the specifications they are seeking such attorney vs. non-attorney. In May of 1996, the DRC established standards of professional conduct to direct all certified and non-certified mediators that work for legislatively authorized programs (Clarke et al., 2004).

DRC requirements for certification vary depending on whether or not the applicant is an attorney. For example, attorney applicants for civil case mediation must have 40 hours of DRC approved certified mediator training, be a member in good standing with the North Carolina bar association or the bar association of another state as long there is a solid understanding of North Carolina state law and court procedures, have 5 years experience, provide three letters of reference, and observe two mediated settlement agreements one of which must have been court ordered (NC DRC, 1996). Further the individual must be of good moral and ethical character and have familiarity with all statues and rules governing mediation in North Carolina (NC DRC, 1996) Non-attorneys on the other hand, are required to have demonstrated significant work history in management and mediation as well as attending additional training to prepare oneself for the settlement process (ND DRC, 1996). They are also required to attend five mediated settlement conferences one of which must have been court ordered. All mediators must adhere to the ethical standards as set forth by the DRC.

In North Carolina child custody proceedings require mandatory mediation. This mediation program is administered by the Administrative Office of the Courts (AOC) and is responsible for all custody and visitation issues that appear in district court. These mediators are typically not attorneys but rather are qualified mental health or social work professionals possessing a master's degree in their discipline (Clarke et al., 2004). They are trained and governed by the AOC. This training includes an initial 40-hour Academy of Family Mediators approved training program, a mentoring program and 12 hours of continuing education hours per year. Mediators follow the code of conduct as established by the DRC, however, the AOC has also established their own standards of conduct for child custody mediators.

North Carolina also has a significant amount of community mediation centers that provide community-based mediation. At the present time there are twenty-six community mediation centers. These centers are comprised of nonprofit agencies that utilize dispute resolution services with an emphasis on mediation. Mediators who work in this setting are community volunteers and are mostly comprised of persons who are not attorneys. These centers have handled many different types of mediation including family issues, divorce, custody, business disputes, and district court matters. The community mediation centers are part of the Mediation Network of North Carolina which provides support, helps coordinate resources between network members, and establishes minimum training criterion for community mediators.

There are also mediators who engage in private practice and provide mediation services on a fee for service basis. These mediators may participate in the legislatively designed programs but also provide services in a number of other settings such as nonprofit and for profit organizations, schools and colleges, churches, human service agencies, and may also participate in multi-party dispute resolution (Clarke et al., 2004). These mediators typically adhere to standards for mediator conduct provided by the DRC, the Academy of Family Mediators, the North Carolina Association of Professional Family Mediators, the Mediation Network of North Carolina, or the Society for Professional Dispute Resolution. However, the DRC standards supersede any other mediator standards. Some matters are also mediated outside of the umbrella of an applicable standard and in such cases mediators should ensure that all proceedings are handled in an ethical manner that guarantees the self-determination of all parties.

In addition in 1999, the North… READ MORE

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