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 during the mediated settlement conference. However, there shall be no ex parte communication before or outside the conference between the mediator and any counsel or party regarding any aspect of the proceeding, except about scheduling matters. Nothing in this rule prevents the mediator from engaging in ex parte communications with the consent of the parties for the purpose of assisting settlement negotiations. (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. b. c. d. the process of mediation; 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; 15 TOC Rule 6 e. f. g. h. i. j. k. 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-38.4A(j); 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(e) 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 disclose to all participants any circumstance 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. To that 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 the results of the mediated settlement conference and any settlement reached by the parties prior to, or during, a recess of the conference to the court. Mediators shall also report the results of mediations held in other district court family financial cases in which a mediated settlement conference was not ordered by the court. The report shall be filed on a Report of Mediator in Family Financial Case, Form AOC-CV-827, within ten days of the conclusion of the conference or within ten days of 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 issues that remain for trial. Local rules shall not require the mediator to send a copy of the parties’ agreement to the court. 16 TOC Rule 6 b. c. d. If an agreement upon all issues was reached at the mediated settlement conference, then the mediator’s report shall state whether the dispute will be resolved by a consent judgment or voluntary dismissal, and the name, address, and telephone number of the person designated by the parties to file the consent judgment or dismissal with the court, as required under Rule 4(c)(2). The mediator shall advise the parties that, consistent with Rule 4(c)(2), their consent judgment or voluntary dismissal is to be filed with the court within thirty days of the conference or before the expiration of the mediation deadline, whichever is later. The mediator’s report shall indicate 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 court. The sanctions shall include, but are not limited to, fines or other monetary penalties, decertification as a mediator, and any other sanctions available through the court’s contempt power. The court shall notify the Commission of any sanction imposed against a mediator under this section. (5) Scheduling and Holding the Mediated Settlement Conference. The mediator shall schedule and conduct the to the conference mediated settlement conference prior 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 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 court. A mediator selected by agreement of the parties shall not delay scheduling or conducting the conference because one or more of the parties has not paid an advance fee deposit as required by the agreement. History Note. 373 N.C. 708; 374 N.C. 1009; 384 N.C. 745. 17 TOC Rule 7