• FreeAdvice has a new Terms of Service and Privacy Policy, effective May 25, 2018.
    By continuing to use this site, you are consenting to our Terms of Service and use of cookies.

Is Mediation required in NC

Accident - Bankruptcy - Criminal Law / DUI - Business - Consumer - Employment - Family - Immigration - Real Estate - Tax - Traffic - Wills   Please click a topic or scroll down for more.

Bele Chere

Junior Member
What is the name of your state? North Carolina

My brother filed a frivolous lawsuit against me almost a year ago because I won't give in to his controling ways. We are equal co successor Trustees/Executors and the only beneficiaries of our Mother's Trust. Since her death he has taken over the Trust and won't give me any information. He has taken 2/3 of the income from rental property in the Trust for his personal use and got mad when I confronted him. My lawyer filed a counter suit against him and issued interrogatories, which my brother and his lawyer seemed to ignore until my lawyer filed a motion to compel (my brother was ordered to pay the cost and to answer the interrogatories). He couldn't come up with any proof to support his lawsuit, while I have several documents to support mine.
Anyway, we now have a court date of June 30 which my lawyer initiated and has requested mediation. My brother's lawyer says they won't agree to mediation. I thought mediation was mandatory. Can we request that the court order it?
 


dcatz

Senior Member
racer is right about the dynamics of mediation, but the answer to your question could be yes or no.

Many states have mandated mediation as a prudent and successful way of removing cases from the court’s calendar. Your state has mandated it for Superior Court cases. Your post doesn’t say if your case is filed in Superior Court but, from the description, one might reasonably guess that it is. If that’s true, the court can order it and should without the need for a request, as I read the statute (but I’m not NC).

If the court orders it, it will by a court-appointed, volunteer neutral. You could still choose to hire a private neutral.

That said, racer is right about the need for consensus. The court can say “thou shalt” and you will or face its wrath. However, unless all parties agree to a resolution, you’ll move on to trial.

The great thing about mediation is that the parties can craft a resolution that a court, following the law, could never make a judgment. That’s an important concept to understand. In mediation, you have complete liberty to fashion your own solution, as opposed to going to trial and having a judge or jury tell you what the solution will be. It’s the difference between the potential for win-win and the certainty of win-lose. Convince those who may be reluctant to at least try.

I’ve never suggested that an OP Google, but there are too many useful links to post.
Try to Google “(North Carolina)+court+mediation” and, if you need to know more on the subject, try:
http://www.mediate.com/

The only other advice would be to find an experienced mediator with some background relating to your dispute. The above link might help. If you get a resolution, it also beats the cost of litigation. I’m not going to cite numbers but, as a litigator/mediator, I assure you that it’s worth the effort.
 

Bele Chere

Junior Member
Thank you for your replies. I found out from my lawyer's assistant that the mediation is mandatory, so I guess my brother and his lawyer are just stalling. I know he's an idiot, but I couldn't believe he'd actually want this to go to trial, if it's not necessary. The whole thing is over money (and a small parcel of land he stole from me). He has everything going against him. I would prefer to settle just to get this 5 year long mess over with. I am willing to take a loss of what I've been cheated out of and settle just for the land and a small portion of the income I should have received. Of course, he thinks he was intitled to do anything he wanted to just because he wanted it.
 

dcatz

Senior Member
I’ve never urged somebody to Google and I’ve never termed somebody on FA an “idiot”. However, if you chose to use that term about somebody who had a chance to mediate and balked, I couldn’t argue. (I also might wonder whether they are getting the best advice from their attorney or if counsel is looking to earn more by taking the case to trial.)

Unless and until a mediated agreement is memorialized into a binding agreement that can be filed and enforced by a court, mediation isn’t binding. There is nothing to lose and much to be gained by trying.

When you add to that the fact that an experienced mediator could give a “neutral evaluation” of how the case might play out in court, if requested to do so, and could identify strengths and weaknesses of each side to facilitate discussion, it's only a benefit.
 

Find the Right Lawyer for Your Legal Issue!

Fast, Free, and Confidential
data-ad-format="auto">
Top