IN THE SUPREME COURT OF NORTH CAROLINA ORDER ADOPTING REVISED RULES OF MEDIATED SETTLEMENT CONFERENCES _________________________________________________ WHEREAS, section 7A-38 of the North Carolina General Statutes provides a means for establishing a pilot program of mediated settlement conferences in superior court civil actions, and WHEREAS, N.C.G.S. 7A-38 enables this Court to implement section 7A-38 by adopting rules and amendments to rules concerning said mediated conferences, NOW, THEREFORE, pursuant to N.C.G.S. 7A-38(d), Rules 1,2,3,6,7 and 8 of the Rules of Mediated Settlement Conferences, 329 N.C. 795, are hereby amended to read as in the following pages. The Amended Rules shall be effective the 1st day of December, 1993. Adopted by the Court in conference the 9th day of September, 1993. The Appellate Court Reporter shall publish the Rules of Mediated Settlement Conferences in their entirety, as amended through this action, at the earliest practicable time. Parker, J. For the Court RULE 1. ORDER FOR MEDIATED SETTLEMENT CONFERENCE (a) Order by Senior Resident Superior Court Judge. The Senior Resident Superior Court Judge of any district, or part thereof, authorized to participate in the mediated settlement conference program may, by written order, require parties and their representatives to attend a pre-trial mediated settlement conference in any civil action except habeas corpus proceedings or other actions for extraordinary writs; (b) Timing of the Order. The Senior Resident Superior Court Judge may issue the order at any time after the time for the filing of answers has expired. Rules l(c) and 3(b) herein shall govern the content of the order and the date of completion of the conference. (c) Content of Order. The court's order shall (1) require the mediated settlement conference be held in the case; (2) establish a deadline for the completion of the conference; (3) state clearly that the parties have the right to select their own mediator as provided by Rule 2; (4) state the rate of compensation of the court appointed mediator in the event that the parties do not exercise their right to select a mediator pursuant to Rule 2; and (5) state that the parties shall be required to pay the mediator's fee at the conclusion of the settlement conference unless otherwise ordered by the court. The order shall be on a form prepared and distributed by the Administrative Office of the Courts. (d) Motion to Dispense With Mediated Settlement Conference. A party may move the Senior Resident Superior Court Judge, within 10 days after the court's order, to dispense with the conference. Such motion shall state the reasons the relief is sought. For good cause shown, the Senior Resident Superior Court Judge may grant the motion. (e) Motion for Court Ordered Mediated Settlement Conference. In cases not ordered to mediated settlement conference, any or all parties may move the Senior Resident Superior Court Judge to order such a conference. Such motion shall state the reasons why the order should be allowed and shall be served on non-moving parties. Objections may be filed in writing with the Senior Resident Superior Court Judge within 10 days after the date of the service of the motion. Thereafter, the Judge shall rule upon the motion without a hearing and notify the parties or their attorneys of the ruling. (f) Exemption from Mediated Settlement Conferences. In order to evaluate the pilot program of mediated settlement conferences, the Senior Resident Superior Court Judge may be required by the Administrative Office of the Courts to exempt from such conferences a random sample of cases so as to create a control group to be used for comparative analysis. RULE 2. SELECTION OF MEDIATOR (a) Selection of Certified Mediator by Agreement of Parties. The parties may select a mediator certified pursuant to these Rules by agreement within 21 days of the court's order. The plaintiff's attorney shall file with the court a Notice of Selection of Mediator by Agreement within 21 days of the court's order. Such notice shall state the name, address and telephone number of the mediator selected; state the rate of compensation of the mediator; state that the mediator and opposing counsel have agreed upon the selection and rate of compensation; and state that the mediator is certified pursuant to these Rules. The notice shall be on a form prepared and distributed by the Administrative Office of the Courts. (b) Nomination and Court Approval of a Non-Certified Mediator. The parties may select a mediator who does not meet the certification requirements of these Rules but who, in the opinion of the parties and the Senior Resident Superior Court Judge, is otherwise qualified by training or experience to mediate all or some of the issues in the action and who agrees to mediate indigent cases without pay. If the parties select a non-certified mediator, the plaintiff's attorney shall file with the court a Nomination of Non-Certified Mediator within 21 days of the court's order. Such nomination shall state the name, address and telephone number of the mediator; state the training, experience or other qualifications of the mediator; state the rate of compensation of the mediator; and state that the mediator and opposing counsel have agreed upon the selection and rate of compensation. The Senior Resident Superior Court Judge shall rule on said nomination without a hearing, shall approve or disapprove of the parties' nomination and shall notify the parties of the court's decision. The nomination and approval or disapproval of the court shall be on a form prepared and distributed by the Administrative Office of the Courts. (c) Appointment of Mediator by the Court. If the parties cannot agree upon the selection of a mediator, the plaintiff or plaintiff's attorney shall so notify the court and request, on behalf of the parties, that the Senior Resident Superior Court Judge appoint a mediator. The motion must be filed within 21 days after the court's order and shall state that the attorneys for the parties have had a full and frank discussion concerning the selection of a mediator and have been unable to agree. The motion shall be on a form prepared and distributed by the Administrative Office of the Courts. Upon receipt of a motion to appoint a mediator, or in the event the plaintiff's attorney has not filed a Notice of Selection or Nomination of Non-Certified Mediator with the court within 21 days of the court's order, the Senior Resident Superior Court Judge shall appoint a mediator certified pursuant to these Rules, under a procedure established by said Judge and set out in Local Rules or other written document. Only mediators who agree to mediate indigent cases without pay shall be appointed. The Administrative Office of the Courts shall furnish for the consideration of the Senior Resident Superior Court Judge of any district where mediated settlement conferences are authorized to be held, the names, addresses and phone numbers of those certified mediators who want to be appointed in said district. (d) Mediator Information Directory. To assist the parties in the selection of a mediator by agreement, the Senior Resident Superior Court Judge having authority over any county participating in the mediated settlement conference program shall prepare and keep current for such county a central directory of information on all certified mediators who wish to mediate cases in that county. Such information shall be collected on loose leaf forms provided by the Administrative Office of the Courts and be kept in one or more notebooks made available for inspection by attorneys and parties in the office of the Clerk of Court in such county. (e) Disqualification of Mediator. Any party may move a Resident or Presiding Superior Court Judge of the district where the action is pending for an order disqualifying the mediator. For good cause, such order shall be entered. If the mediator is disqualified, a replacement mediator shall be selected or appointed pursuant to Rule 2. Nothing in this provision shall preclude mediators from disqualifying themselves. RULE 3. THE MEDIATED SETTLEMENT CONFERENCE (a) Where Conference is to be Held. Unless all parties and the mediator otherwise agree, the mediated settlement conference shall be held in the courthouse or other public or community building in the county where the case is pending. The mediator shall be responsible for reserving a place and making arrangements for the conference and for giving timely notice to all attorneys and unrepresented parties of the time and location of the conference. (b) When Conference Is to be Held. As a guiding principle, the conference should be held after the parties have had a reasonable time to conduct discovery but well in advance of the trial date. The court's order issued pursuant to Rule l(b) shall clearly state a date of completion for the conference. Said date shall not be less than 90 days nor more than 180 days after the issuance of the court's order. (c) Request to Extend Date of completion. A party, or the mediator, may request the Senior Resident Superior Court Judge to extend the deadline for completion of the conference. Such request shall state the reasons the continuance is sought and shall be served by the moving party upon the other parties and the mediator. The Senior Resident Superior Court Judge may grant the request and enter an order setting a new date for the completion of the conference, which date may be set at any time prior to trial. Said order shall be served upon the parties and the mediator. (d) Recesses. The mediator may recess the conference at any time and may set times for reconvening. No further notification is required for persons present at the recessed conference. (e) The Mediated Settlement Conference is Not to Delay Other Proceedings. It shall not be cause for the delay of other proceedings in the case, including the completion of discovery, the filing or hearing of motions, or the trial of the case, except by order of the Senior Resident Superior Court Judge. RULE 4. DUTIES OF PARTIES, REPRESENTATIVES, AND ATTORNEYS (a) Attendance. The following persons shall physically attend a mediated settlement conference: (1) All individual parties; or an officer, director or employee having authority to settle the claim for a corporate party; or in the case of a governmental agency, a representative of that agency with full authority to negotiate on behalf of the agency and to recommend settlement to the appropriate decision making body of the agency; and (2) The party's counsel of record, if any; and (3) For any insured party against whom a claim is made, a representative of the insurance carrier who is not such carrier's outside counsel and who has full authority to settle the claim. (b) Finalizing Agreement. Upon reaching agreement, the parties shall reduce the agreement to writing and sign it along with their counsel. By stipulation of the parties and at their expense, the agreement may be electronically or stenographically recorded. A consent judgment or one or more voluntary dismissals shall be filed with the court by such persons as the parties shall designate. endtable (c) Payment of Mediator's Fee. The parties shall pay the mediator's fee as provided by Rule 7. RULE 5. SANCTIONS FOR FAILURE TO ATTEND If a person fails to attend a duly ordered mediated settlement conference without good cause, a Resident or Presiding Judge may impose upon the party or his principal any lawful sanction, including but not limited to the payment of attorneys fees, mediator fees and expenses incurred by persons attending the conference; contempt; or any other sanction authorized by Rule 37(b) of the Rules of Civil Procedure. RULE 6. AUTHORITY AND DUTIES OF MEDIATORS (a) Authority of Mediator. (1) Control of Conference. The mediator shall at all times be in control of the conference and the procedures to be followed. (2) Private Consultation. The mediator may meet and consult privately with any party or parties or their counsel during the conference. (3) Scheduling the Conference. The mediator shall make a good faith effort to schedule the conference at a time that is convenient with the parties, attorneys and mediator. In the absence of agreement, the mediator shall select the date for the conference. (b) Duties of Mediator. (1) The mediator shall define and describe the following to the parties at the beginning of the conference: endtable (a) The process of mediation; (b) The differences between mediation and other forms of conflict resolution; (c) The costs of the mediated settlement conference; (d) The facts that the mediated settlement conference is not a trial, the mediator is not a judge, and the parties retain their right to trial if they do not reach settlement; (e) The circumstances under which the mediator may meet alone with either of the parties or with any other person; (f) Whether and under what conditions communications with the mediator will be held in confidence during the conference; (g) The inadmissibility of conduct and statements as provided by Rule 408 of the Evidence Code; (h) The duties and responsibilities of the mediator and the parties; and (i) The fact that any agreement reached will be reached by mutual consent of the parties. (2) Disclosure. The mediator has a duty to be impartial and to advise all parties of any circumstances bearing on possible bias, prejudice or partiality. (3) Declaring Impasse. It is the duty of the mediator to timely determine when mediation is not viable, that an impasse exists, or that mediation should end. (4) Reporting Results of Conference. The mediator shall report to the court in writing whether or not an agreement was reached by the parties. If an agreement was reached, the report shall state whether the action will be concluded by consent judgment or voluntary dismissal and shall identify the persons designated to file such consent judgment or dismissals. The Administrative Office of the Courts may require the mediator to provide statistical data for evaluation of the mediated settlement conference program on forms provided by it. (5) Scheduling and Holding the Conference, It is the duty of the mediator to schedule the conference and conduct it prior to the conference completion deadline set out in the court's order. Deadlines for completion of the conference shall be strictly observed by the mediator unless said time limit is changed by a written order of the Senior Resident Superior Court Judge. RULE 7. COMPENSATION OF THE MEDIATOR (a) By Agreement. When the mediator is stipulated to by the parties, compensation shall be as agreed upon between the parties and the mediator. (b) By Court Order. When the mediator is appointed by the court, the mediator shall be compensated by the parties at an hourly rate set by the Senior Resident Superior Court Judge for all court appointed mediators in the district, upon consultation with the Administrative Office of the Courts. (c) Indigent Cases. No party found to be indigent by the court for the purposes of these rules shall be required to pay a mediator appointed or selected pursuant to these rules. Any mediator conducting a settlement conference pursuant to these rules shall waive the payment of fees from parties found by the court to be indigent. Any party may move the Senior Resident Superior Court Judge for a finding of indigence and to be relieved of its obligation to pay its share of the mediator's compensation. Said motion shall be heard subsequent to the completion of the conference or, if the parties do not settle their case, subsequent to the trial of the action. The Judge may take into consideration the outcome of the action and whether a judgment was rendered in the movant's favor. The court shall enter an order granting or denying the party's request. (d) Payment of Compensation by Parties. Unless otherwise agreed to by the parties or ordered by the court, costs of the mediated settlement conference shall be paid: one share by the plaintiffs, one share by the defendants and one share by third-party defendants. Parties obligated to pay a share of the costs shall pay them equally. Payment shall be due upon completion of the conference. RULE 8. MEDIATOR CERTIFICATION AND DECERTIFICATION The Administrative Office of the Courts may receive and approve applications for certification of persons to be appointed as mediators. For certification, a person must: (a) Have completed a minimum of 40 hours in a Trial Court Mediation Training Program certified by the Administrative Office of the Courts; (b) Be a member in good standing of the North Carolina State Bar and have at least five years experience as a judge, practicing attorney, law professor, or mediator, or equivalent experience; (c) Observe two civil trial court mediated settlement conferences conducted by a mediator certified either in the State of North Carolina or in any other state with comparable certification requirements to those outlined in these rules; (d) Demonstrate familiarity with the statute, rules, and practice governing mediated settlement conferences in North Carolina; (e) Be of good moral character and adhere to any ethical standards hereafter adopted by this Court; (f) Submit proof of qualifications set out in this section on a form provided by the Administrative Office of the Courts; (9) Pay all administrative fees established by the Administrative Office of the Courts; and (h) Agree to mediate indigent cases without pay. Certification may be revoked or not renewed at any time it is shown to the satisfaction of the Director of the Administrative Office of the Courts that a mediator no longer meets the above qualifications or has not faithfully observed these rules or those of any district in which he or she has served as a mediator. RULE 9. CERTIFICATION OF MEDIATION TRAINING PROGRAMS (a) Certified training programs for mediators of Superior Court civil actions shall consist of a minimum of 40 hours instruction. The curriculum of such programs shall include: (1) Conflict resolution and mediation theory; (2) Mediation process and techniques, including the process and techniques of trial court mediation; (3) Standards of conduct for mediators; (4) Statutes, rules, and practice governing mediated settlement conferences in North Carolina; (5) Demonstrations of mediated settlement conferences; (6) Simulations of mediated settlement conferences, involving student participation as mediator, attorneys and disputants, which simulations shall be supervised, observed and evaluated by program faculty; and (7) Satisfactory completion of an exam by all students testing their familiarity with the statutes, rules and practice governing mediated settlement conferences in North Carolina. (b) A training program must be certified by the Director of the Administrative Office of the Courts before attendance at such program may be used for compliance with Rule 8(a). Certification need not be given in advance of attendance. Training programs attended prior to the promulgation of these rules or attended in other states may be approved by the Director of the Administrative Office of the Courts if they are in substantial compliance with the standards set forth in this rule. (c) Payment of all administrative fees must be made prior to certification. RULE 10. LOCAL RULE MAKING The Senior Resident Superior Court Judge of any district conducting mediated settlement conferences under these rules is authorized to publish local rules implementing mediated settlement conferences not inconsistent with these rules and G.S. 7A-38.