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, except that no administrative fee or fees for services shall be assessed against a party if all parties waive mediation prior to the occurrence of an initial mediation session. (b) By Court Order. When the mediator is appointed by the court, the parties shall compensate the mediator for mediation services at the rate of $150 per hour. The parties shall also pay to the mediator a one-time, per-case administrative fee of $150, except that no administrative fee or fees for services shall be assessed against a party if all parties waive mediation prior to the occurrence of an initial mediation meeting. (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’s fee. Any mediator conducting a mediation under these rules shall waive the fee requirement for parties found by the court to be indigent. Any party may move the senior resident superior court judge for a finding of indigency and to be relieved of that party’s obligation to pay a share of the mediator’s fee. The motion shall be heard subsequent to the completion of the mediation or, if the parties do not settle their dispute, subsequent to trial. In ruling upon such motion, the judge shall apply the criteria in N.C.G.S. § 1-110(a) but shall 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 for a finding of indigency. (d) Postponement Fee. As used in this rule, “postponement” means to reschedule or not proceed with a mediation once a date for the mediation has been agreed upon and scheduled by the parties and the mediator. After a mediation has been scheduled for a specific date, a party may not unilaterally postpone the mediation. A mediation may be postponed only after notice to all parties of the reason 8 TOC Rule 6 for the postponement, payment of a postponement fee to the mediator, and after consent is given by the mediator and the opposing attorney. If the mediation is postponed within seven business days of the scheduled date, then a postponement fee shall be assessed. The postponement fee shall be $300 if the mediation is postponed within three business days of the scheduled date, and $150 if the mediation is postponed more than three business days, but less than seven business days, prior to the scheduled date. Postponement fees shall be paid by the party requesting the postponement, unless otherwise agreed to by the parties. Postponement fees are in addition to the one-time, per-case administrative fee provided for in subsection (b) of this rule. (e) Payment of Compensation by Parties. Unless otherwise agreed to by the parties or ordered by the court, the mediator’s fee shall be paid in equal shares by the parties. For purposes of this rule, multiple parties shall be considered one party when they are represented by the same counsel. Parties obligated to pay a share of the mediator’s fee shall pay the fee equally. Payment shall be due upon completion of the mediation. (f) Sanctions for Failure to Pay the Mediator’s Fee. Willful failure of a party to make timely payment of that party’s share of the mediator’s fee (whether the one-time, per-case administrative fee, the hourly fee for mediation services, or any postponement fee), or willful failure of a party contending indigent status to promptly move the senior resident superior court judge for a finding of indigency, shall constitute contempt of court and may result, following notice, in a hearing and the imposition of monetary sanctions by a resident or presiding superior court judge. Comment Comment to Rule 6(b). Court-appointed mediators may not be compensated for travel time, mileage, or any other out-of-pocket expenses. that mediators Comment to Rule 6(d). Though Rule 6(d) provides shall assess a postponement fee, it is understood that there may be rare situations in which the circumstances occasioning a request for a postponement are beyond the control of the parties (e.g., an illness, serious accident, or unexpected and unavoidable trial conflict). If a party takes steps to notify the mediator as such circumstances, then the mediator may, in his or her discretion, waive the postponement fee. soon as possible in Nonessential requests for postponements work a hardship on parties and mediators and serve only to inject delay into a process and to expedite settlement. program designed As such, it is expected that mediators will assess a postponement fee in all instances where a 9 request does not appear to be absolutely warranted. Moreover, mediators are encouraged not to agree to postponements in instances where, in their judgment, the mediation could be held as scheduled. Comment to Rule 6(e). If a party is found by a senior resident superior court judge to have failed to attend a mediation without good cause, then the court may require that party to pay the mediator’s fee and related expenses. and court-appointed, Comment to Rule 6(f). If the Prelitigation Farm Nuisance Mediation Program is to be successful, it is essential that mediators, both party-selected be compensated for their services. Rule 6(f) is intended to give the court express authority to enforce payment of to both party-selected and court-appointed mediators. is the mediator In instances party-selected, the court may enforce fees which exceed the caps set forth in Rule 6(b) fees owed where TOC Rule 6 (hourly fee and administrative fee) and Rule 6(d) (postponement fee and cancellation fee), or which provide for payment of services or expenses not provided for in Rule 6, but agreed to among the parties (e.g., payment for travel time or mileage). History Note. 373 N.C. 772.