Authority and Duties of the Mediator

(a) Authority of the Mediator. (1) Control of the Mediated Settlement Conference. The mediator shall at all times be in control of the mediated settlement conference 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 prior to, and during, the mediated settlement conference. The fact that private communications have occurred with a participant shall be disclosed to all other participants at the beginning of the conference. (b) Duties of the Mediator. (1) Informing the Parties. At the beginning of the mediated settlement conference, the mediator shall define and describe for the parties: a. the process of mediation; 17 TOC Rule 6 b. c. d. e. f. g. h. i. j. k. the differences between mediation and other forms of conflict resolution; the costs of the mediated settlement conference; the fact that the mediated settlement conference is not a trial, that the mediator is not a judge, and that the parties retain their right to a trial if they do not reach settlement; the circumstances under which the mediator may meet and communicate privately with any of the parties, or with any other person; whether, and under what conditions, communications with the mediator will be held in confidence during the mediated settlement conference; the inadmissibility of conduct and statements as provided by N.C.G.S. § 7A-38.1; the duties and responsibilities of the mediator and the participants; the fact that any agreement reached will be reached by mutual consent; the fact that Rule 4(f) prohibits any recording of the mediated settlement conference; 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 that an impasse exists and that the mediated settlement conference should end. The mediator shall inquire of and consider the desires of the parties to cease or continue the conference. (4) Reporting Results of the Mediated Settlement Conference. a. The mediator shall report to the court the results of the mediated settlement conference and any settlement reached by the parties prior to, or during, a recess of the conference. Mediators shall also report the results of mediations held in other superior court civil cases in which a conference was not ordered by the court. The report shall be filed on a Report of Mediator in Superior Court Civil Action, Form AOC-CV-813, within ten days of the 18 TOC Rule 6 conclusion of the conference or within ten days of the mediator being notified of the settlement, and shall include the names of the persons who attended the conference, if a conference was held. If a partial agreement was reached at the conference, then the report shall state the claims for relief that were resolved and the names of any parties that have no claims remaining for trial. Local rules shall not require the mediator to send a copy of the parties’ agreement to the court. If an agreement upon all issues is reached prior to or at the mediated settlement conference, or during a recess of the conference, then the mediator’s report shall state whether the action will be concluded by consent judgment or voluntary dismissal and state the name, address, and telephone number of the person designated by the parties to file the consent judgment or dismissal with the court. The mediator shall advise the parties that Rule 4(c) requires them to file the consent judgment or voluntary dismissal with the court within thirty days of the conference, or within ninety days if the State or a political subdivision of the State is a party to the action, or before expiration of the mediation deadline, whichever is later. The mediator shall indicate on the report that the parties have been so advised. The Commission or the North Carolina Administrative Office of the Courts (NCAOC) may require the mediator to provide statistical data for evaluation of the mediated settlement conference program. A mediator who fails to report as required by this rule shall be subject to sanctions by the senior resident superior court judge. The sanctions shall include, but are not limited to, fines or other monetary penalties, decertification as a mediator, and any other sanction available through the court’s contempt power. The senior resident superior court judge shall notify the Commission of any action taken against a mediator under this subsection. b. c. d. (5) the Mediated Settlement Scheduling and Holding Conference. It is the duty of the mediator to schedule and conduct the mediated settlement conference prior to the conference completion deadline set out in the court’s order. The mediator shall make an effort to schedule the conference at a time that is convenient to all participants. In the absence of agreement, the mediator shall select a date and time for the 19 TOC Rule 6 conference. The deadline for completion of the conference shall be strictly observed by the mediator, unless the deadline is changed by written order of the senior resident superior court judge. A mediator selected by agreement of the parties shall not delay scheduling or holding a conference because one or more of the parties has not paid an advance fee deposit as required by the agreement. Comment Parties subject to Chapter 159 of the General been pre-audited to assure compliance with Statutes of North Carolina—which provides, N.C.G.S. § 159-28(a) and that an obligation incurred in violation of N.C.G.S. § 159-28(a) or among other things, that if an obligation is (a1) is invalid and may not be enforced—should, evidenced by a contract or agreement requiring as appropriate, inform all participants at the the payment of money or by a purchase order for beginning of the mediation of the preaudit supplies and materials, then the contract, requirement and the consequences for failing to agreement, or purchase order shall include on its preaudit under N.C.G.S. § 159-28. face a certificate stating that the instrument has History Note. 373 N.C. 663; 384 N.C. 763.