Authority and Duties of the Mediator

(a) Authority of the Mediator. (1) Control of the Mediation. The mediator shall at all times be in control of the mediation and the procedures to be followed. The mediator’s conduct shall be governed by the Standards of Professional Conduct for Mediators. (2) Private Consultation. The mediator may communicate privately with any participant or counsel prior to, during, and 12 TOC Rule 6 after the mediation. The fact that private communications have occurred with a participant before the conference shall be disclosed to all other participants at the beginning of the mediation. (b) Duties of the Mediator. (1) Informing the Parties. At the beginning of the mediation, the mediator shall define and describe for the parties: a. b. c. d. e. f. g. h. i. j. the process of mediation; the costs of mediation and the circumstances in which participants will not be assessed the costs of mediation; the fact that the mediation is not a trial, that the mediator is not a judge, and that the parties retain the right to a hearing if they do not reach a settlement; the circumstances under which the mediator may meet and communicate privately with the parties or with any other person; whether, and under what conditions, communications with the mediator will be held in confidence during the conference; the inadmissibility of conduct and statements under N.C.G.S. § 7A-38.3B; the duties and responsibilities of the mediator and the participants; the fact that any agreement reached will be reached by mutual consent and reported to the clerk under subsection (b)(4) of this rule; the fact that Rule 4(d) prohibits any recording of the mediation; and the fact that the parties may be subject to sanctions for violating these rules. (2) Disclosure. The mediator has a duty to be impartial and to advise all participants of any circumstances bearing on possible bias, prejudice, or partiality. (3) Declaring Impasse. It is the duty of the mediator to determine in a timely manner when an impasse exists and when the mediation should end. The mediator shall inquire of and consider the desires of the parties to cease or continue the mediation. 13 TOC Rule 6 (4) Reporting Results of the Mediation. a. b. The mediator shall report to the court in writing on a form prescribed by the North Carolina Administrative Office of the Courts (NCAOC) within five days of completing the mediation whether the mediation resulted in settlement or whether an impasse was declared. If settlement occurred prior to or during a recess of the mediation, then the mediator shall file the report of settlement within five days of receiving notice of the settlement and, in addition to the other information required, report on who informed the mediator of the settlement. The mediator’s report shall identify those persons attending the mediation, the time spent conducting the mediation and fees charged for the mediation, and the names and contact information of the persons designated by the parties to file a consent judgment or dismissal with the clerk, as required by Rule 4(b). Mediators shall provide statistical data for evaluation of the mediation program as required from time to time by the Commission or the NCAOC. Mediators shall not be required to send agreements reached in mediation to the clerk, except in estate and guardianship matters and other matters which may be resolved only by order of the clerk. (5) c. Mediators who fail to report as required under this rule shall be subject to the contempt power of the court and sanctions. Scheduling and Holding the Mediation. It is the duty of the mediator to schedule and conduct the mediation prior to the mediation completion deadline set out in the clerk’s order. The mediator shall make an effort to schedule the mediation at a time that is convenient to all participants. In the absence of agreement, the mediator shall select a date and time for the mediation. The deadline for completion of the mediation shall be strictly observed by the mediator, unless the deadline is changed by a written order of the clerk. History Note. 373 N.C. 742; 384 N.C. 784. 14 TOC Rule 7