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North Dakota Mediation

Mediation is an Alternative Dispute Resolution (ADR) method. There are a variety of others, such as Collaborative Negotiation, Arbitration, and Early Neutral Evaluation. Instead of resolving legal disputes through litigation and courts, individuals can opt to use mediation.

Mediation is led by a mediator trained in the mediation process and skilled in the legal issues being mediated. The mediator is neutral and unaligned with either party.

As a “facilitative” ADR method, the mediation process is designed to help both parties reach an agreement of their own creation rather than to have their outcome decided by someone else. It is a brokering process, where the parties reach agreement, not an “adjudicative” process where someone else makes decisions for you.

Mediation sessions are voluntary and confidential: No one can be forced to mediate a dispute; and what happens at mediation stays at mediation.

Common Questions About Mediation in North Dakota

How does mediation work?

The disputing individuals (usually accompanied by their attorneys) gather at one office with the mediator. The parties are usually situated in separate rooms, with their attorneys, and the mediator shuttles back and forth between rooms. The mediator guides the communication process and different solutions are explored to help reach the best possible agreement. Some mediators help parties develop options while others offer some suggestions; but the final agreement is always up to the parties.

What types of disputes can be resolved in mediation?

Virtually any issue in conflict between husband and wife is suitable for mediation, including, but not at all limited to:

  • Custody and parenting time issues
  • Child Support
  • Insurance issues
  • Dependent exemption allocation
  • Distributing assets
  • Distributing liability for debts
  • Spousal support
  • Identifying other dispute-resolving processes
  • and many more.

Mediation tends to be paired with divorce, where both parties are open to an active dialogue and negotiations. Parents that will have ongoing communication about their children lives after divorce are encouraged to begin the new dialogue within mediation sessions. 

Using mediation to resolve disputes can help save on time and legal fees and create a more tailored settlement for both individuals.

Are children involved in the mediation process?

No. Often times, mediation occurs without input from children. With the help of the mediator, the two disputing parties are required to consider all viewpoints and make agreements that are in the best interests of their child.

Children are typically not present during mediation. Having a child present can cause unnecessary stress, especially when asked to pick a side.

A child’s input can be valuable and sought out, but only if they are at the appropriate age to understand the situation and no manipulation is involved.

Additional Mediation Questions & Answers

 

Mediation is:

  1. a cooperative problem-solving process;
  2. in which a neutral professional who is trained in both mediation and family law;
  3. helps people in conflict clearly define the issues in dispute;
  4. and to reach agreements that are in the best interests of their family.

The disputing individuals (usually accompanied by their attorneys) gather at one office with the mediator. The parties are usually situated in separate rooms, with their attorneys, and the mediator shuttles back and forth between rooms. The mediator guides the communication process and different solutions are explored to help reach the best possible agreement. Some mediators help parties develop options while others offer some suggestions; but the final agreement is always up to the parties.

Virtually any issue in conflict between husband and wife is suitable for mediation, including, but not at all limited to:

  1. Custody and parenting time issues;
  2. Child Support;
  3. Insurance issues;
  4. Dependent exemption allocation;
  5. Distributing assets;
  6. Distributing liability for debts;
  7. Spousal support;
  8. Identifying other dispute-resolving processes;
  9. and more.

Yes and no.

No. No one can force you to participate in mediation.  It is a voluntary process.

Yes.  If you both decide to mediate, you both need to be present and to participate. Mediation is a joint, cooperative problem-solving process, so both spouses need to actively participate. Participants need not feel friendly toward one another but should be willing to work together to find solutions that will meet the needs of everyone involved.

Mediation is not couples counseling. Feelings about the marriage and the decision to separate or divorce may be discussed, however, the focus of mediation is to find solutions and reach agreements so that family members may better adjust to the separation or divorce and resolve future issues as a family. If there are any doubts about the separation or divorce, you should talk with your spouse about counseling as an activity separate from mediation.

In our view, it is foolish to attend a mediation unaccompanied by your lawyer.  Mediation is a critical juncture, where the big issues in your life are being resolved.  It is where you will determine how to allocate time with your kids, how to divvy up all the assets and debts you have accumulated, and establish your standard of living going forward.  You don’t want to make a mistake.  An attorney skilled in negotiating, familiar with the legal processes and systems you’ll encounter, experienced in identifying legal, tax, and insurance issues, and aware of creative solutions, will help you avoid mistakes and find the best possible solution.

Mediation is not a substitute for independent legal advice. Lawyers can help their clients understand the law, make informed agreements, draft the final agreement and complete the legal divorce process. The mediator focuses on helping participants reach their own agreements and does not represent either party.

Often at the end of a mediation, the involved attorneys will draft, and the parties will sign a formal agreement.  Those agreements are legally binding.

Other times, usually for lack of time, a mediator will prepare a summary of the parties’ agreement.  Those summaries are usually not regarded as binding, in and of themselves, until the attorneys reduce them to a more full-bodied, comprehensive, agreement, and the parties sign.

The parties’ signed agreement is then filed with the court, which incorporates its terms into a final court order or divorce judgment.

The mediation process may not resolve all issues, but may still be beneficial.

Sometimes the parties can resolve some issues, which narrows issues and limits the time and expense of going to court. Sometimes a “failed” mediation results in the sharing of information that helps the parties better, more accurately, assess their positions.  They may also help the parties identify information that needs to be gathered before a mediation can resume, or to identify a process for resolving contested issues.  For example, if parties cannot agree how to distribute a piece of real estate because they disagree on its value, they may agree upon a specific individual to appraise it.

In North Dakota, where children are involved the State provides the parties six hours of mediation, at the state’s expense. Mediators who are privately retained charge an hourly fee, just as each party’s attorney does, which is typically shared by the parties. Mediation is less costly, both emotionally and financially, than litigation.

In North Dakota, when children are involved, mediation services are available through the state, and are assigned to each case by the state program administrator.  Otherwise, your attorney will help you identify a mediator suitable for your case.

Mediation may not be the best choice if there are concerns about domestic violence, child abuse, mental illness or abuse of drugs or alcohol. Consult your attorney to determine the best available method of dispute resolution. Mediation works best when both parties can fully express their needs and interests follow through on the agreements that they reach.