Frequently asked questions

In a mediated settlement conference, or “mediation,”  a neutral professional, (not always a lawyer) who is trained in dispute resolution attempts to help the disputing parties negotiate the terms of an agreement.

However, mediation has two fundamental challenges that frequently make less likely to result in an enforceable agreement:

1. A mediator cannot offer legal advice to either party-even if the mediator is licensed to practice law. No matter how many times a party may ask, or how nicely and respectfully, the mediator is prohibited from giving legal advice to either side.
2. In North Carolina, a mediator is not allowed to draft a settlement agreement for the parties or suggest legally enforceable language.

The result is that after a successful mediation the parties typically sign a “memorandum of understanding,” or a “term sheet” that contains an outline of what they have agreed to. The mediator almost always encourages the parties to hire an attorney to help with the drafting of a legally enforceable agreement based on the agreed upon terms. Best practice is for each side to have an attorney review the memorandum of understanding and make sure that it is clear and legally enforceable. 

The Collaborative Process provides a remedy for each of these problems.  Each party has his or her own collaborative attorney who can provide legal advice regarding the governing law, a well-trained and effective negotiation strategy, and the final written and enforceable agreement.