Duties of Parties, Attorneys, and Other Participants in Mediations

(a) Attendance. (1) Persons Required to Attend. The following persons shall attend a mediation: a. b. c. d. Any person ordered by the clerk to attend. Any nongovernmental entity ordered to attend a mediation conducted under these rules shall be represented at the mediation by an officer, employee, or agent who is not the entity’s outside counsel and who has authority to decide on behalf of the entity whether, and on what terms, to settle the matter. Any governmental entity ordered to attend a mediation conducted under these rules shall be represented at the mediation by an employee or agent who is not the entity’s outside counsel and who has authority to decide on behalf of the entity whether, and on what terms, to settle the matter; provided, however, that if proposed settlement terms can be approved only by a governing board, the employee or agent shall have authority to negotiate on behalf of the governing board. An attorney ordered to attend a mediation under these rules has satisfied the attendance requirement when at least one counsel of record for any person ordered to attend has attended the mediation. 9 TOC Rule 4 e. Other persons may participate in a mediation at the discretion of the mediator. (2) Attendance Method. a. Determination. 1. 2. 3. All parties and persons required to attend a mediation may agree to conduct the mediation in person, using remote technology, or using a hybrid of in-person attendance and remote technology. If all parties and persons required to attend the mediation do not agree on an attendance method and the mediator has designated in the Mediator Information Directory that he or she will conduct mediations only using remote technology, then the mediation shall be conducted using remote technology. If all parties and persons required to attend the mediation do not agree on an attendance method and the mediator has not selected remote technology as his or her designated attendance method in the Mediator Information Directory, then the mediation shall be conducted in person. b. Order by Clerk; Mediator Withdrawal. The clerk, upon motion of a party and notice to the mediator and to all other parties and persons required to attend the mediation, may order that the mediation be conducted in person, using remote technology, or using a hybrid of in- person attendance and remote technology. If the method of attendance ordered by the clerk is contrary to the attendance method the mediator has designated in the Mediator Information Directory, then the mediator may withdraw from the case under Rule 2(d). (3) Scheduling. Persons ordered to attend a mediation shall promptly notify the mediator, after selection or appointment, of any significant problems that they may have with the dates for mediation sessions before the completion deadline, and shall inform the mediator of any problems that arise before an anticipated mediation session is scheduled by the mediator. (4) Excusing the Attendance Requirement. Any person may be excused from the requirement to attend a mediation with the 10 TOC Rule 4 consent of all persons required to attend the mediation and the mediator. (5) Safety Compliance. The mediator and all parties and persons required to attend a mediation shall comply with all federal, state, and local safety guidelines that are in place for trial court proceedings at the time of the mediation. (b) Finalizing Agreement. (1) (2) If an agreement is reached at the mediation, in matters that, as a matter of law, may be resolved by the parties by agreement, then the parties to the agreement shall reduce the terms of the agreement to writing and sign the writing. The parties shall designate a person who will file a consent judgment or a voluntary dismissal with the clerk, and that person shall sign the mediator’s report. If an agreement is reached prior to or during a recess of the mediation, then the parties shall inform the mediator and the clerk that the matter has been settled and, within ten calendar days of the agreement, file a consent judgment or voluntary dismissal with the court. A designee may sign the agreement on behalf of a party only if the party does not attend the mediation in person and the party provides the mediator with a written verification that the designee is authorized to sign the agreement on the party’s behalf. In all other matters, including guardianship and estate matters, if an agreement is reached upon some or all of the issues at the mediation, then the persons ordered to attend the mediation shall reduce the terms of the agreement to writing and sign the writing. Such agreements are not binding upon the clerk, but may be offered into evidence at the hearing of the matter and may be considered by the clerk for a just and fair resolution of the matter. Evidence of statements made and conduct occurring in a mediation where an agreement is reached is admissible under N.C.G.S. § 7A-38.3B(g)(3). All written agreements reached in such matters shall include the following language in a prominent location in the document: “This agreement is not binding on the clerk but will be presented to the clerk as an aid to reaching a just resolution of the matter.” (c) Payment of the Mediator’s Fee. The persons ordered to attend the mediation shall pay the mediator’s fee as provided by Rule 7. 11 TOC Rule 4 (d) No Recording. There shall be no stenographic, audio, or video recording of the mediation process by any participant. This prohibition includes recording either surreptitiously or with the agreement of the parties. Comment Comment to Rule 4(a)(2). The rule describes the attendance methods used for mediations. If a mediation is conducted using remote technology, then the mediator should ensure that the parties are able to fully communicate with all other participants and videoconferencing is encouraged. History Note. 373 N.C. 742; 374 N.C. 984; 375 N.C. 1085; 378 N.C. 778; 384 N.C. 784; Order Dated 11 December 2024.