Initiating Settlement Events

(a) Purposes of Mandatory Settlement Procedures. These rules are promulgated under N.C.G.S. § 7A-38.1 to implement a system of settlement events, which are designed to focus the parties’ attention on settlement, rather than on trial preparation, and to provide a structured opportunity for settlement negotiations to take place. Nothing in these rules is intended to limit or prevent the parties from engaging in settlement procedures voluntarily, either prior to, or after, those ordered by the court under these rules. (b) Duty of Counsel to Consult with Clients and Opposing Counsel Concerning Settlement Procedures. In furtherance of the purposes set out in subsection (a) of this rule, upon being retained to represent any party to a superior court civil action, counsel shall advise his or her client regarding the settlement procedures approved by these rules, and shall attempt to reach an agreement with opposing counsel on an appropriate settlement procedure for the action. (c) Initiating the Mediated Settlement Conference by Court Order. (1) Order of the Senior Resident Superior Court Judge. In all civil actions, except those actions in which a party is seeking the issuance of an extraordinary writ or is appealing the revocation of a motor vehicle operator’s license, the senior resident superior court judge of any judicial district shall, by written order, require all persons and entities identified in Rule 4 to attend a pretrial mediated settlement conference. The judge may withdraw his or her order upon motion of a party under subsection (c)(6) of this rule only for good cause shown. (2) Motion to Authorize the Use of Other Settlement Procedures. The parties may move the senior resident superior court judge to authorize the use of another settlement procedure allowed by these rules, or by local rule, in lieu of a mediated settlement conference, as provided in N.C.G.S. § 7A-38.1(i). The party requesting the authorization shall file a Motion to Use Settlement Procedure Other than Mediated Settlement Conference in Superior Court Civil Action and Order, Form AOC- CV-818, within twenty-one days of the senior resident superior court judge’s order requiring a conference. The motion shall include: a. the type of settlement procedure requested; 5 TOC Rule 1 b. c. d. the name, address, and telephone number of the neutral evaluator (neutral) selected by the parties; the rate of compensation of the neutral; that the neutral and opposing counsel have agreed upon the selection and compensation of the neutral; and e. that all parties consent to the motion. If the parties are unable to agree to each of the above, then the senior resident superior court judge shall deny the motion and the parties shall attend the conference as originally ordered by the court. If the motion is granted, then the court may order the use of any agreed upon settlement procedure authorized by Rule 10, Rule 11, Rule 12, or Rule 13, or by local rule of the superior court in the county or judicial district where the action is pending. (3) Timing of the Order. The senior resident superior court judge shall issue the order requiring a mediated settlement conference as soon as practicable after the time for the filing of answers has expired. Both Rule 3(b) and subsection (c)(4) of this rule shall govern the content of the order and the date for completion of the conference. (4) Content of the Order. The court’s order shall be on an Order for Mediated Settlement Conference in Superior Court and Trial Calendar Notice, Form AOC-CV-811, and shall: a. b. c. d. e. require that a mediated settlement conference be held in the case; establish a deadline for the completion of the mediated settlement conference; state clearly that the parties have the right to select their own mediator as provided by Rule 2; state the rate of compensation of the court-appointed mediator, if the parties do not exercise their right to select a mediator under Rule 2; and state that the parties shall be required to pay the mediator’s fee at the conclusion of the mediated settlement conference, unless otherwise ordered by the court. (5) Motion for Court-Ordered Mediated Settlement Conference. In cases not ordered to participate in a mediated settlement conference, any party may file a written motion with the senior resident superior court judge requesting that the 6 TOC Rule 1 conference be ordered. The motion shall state the reasons why the order should be allowed and shall be served on the nonmovant. Any objections to the motion may be filed in writing with the senior resident superior court judge within ten days of the date of the service of the motion. The judge shall rule on the motion without a hearing and shall notify the parties or their attorneys of the ruling. (6) Motion to Dispense with the Mediated Settlement Conference. A party may move the senior resident superior court judge to dispense with a mediated settlement conference ordered by the judge. The motion shall state the reasons the relief is sought. For good cause shown, the senior resident superior court judge may grant the motion. Good cause may include, but is not limited to, the fact that the parties (i) have participated in a settlement procedure, such as nonbinding arbitration or early neutral evaluation, prior to the court’s order to participate in a conference; or (ii) have elected to resolve their case through arbitration. (d) Initiating the Mediated Settlement Conference by Local Rule. (1) Order by Local Rule. In judicial districts in which a system of scheduling orders or scheduling conferences is utilized to aid in the administration of civil cases, the senior resident superior court judge of the district shall, by local rule, require all persons and entities identified in Rule 4 to attend a pretrial mediated settlement conference in all civil actions, except those actions in which a party is seeking the issuance of an extraordinary writ or is appealing the revocation of a motor vehicle operator’s license. The judge may withdraw his or her order upon motion of a party under subsection (c)(6) of this rule only for good cause shown. (2) Scheduling Orders or Notices. In judicial districts in which scheduling orders or notices are utilized to manage civil cases and for all cases ordered to participate in a mediated settlement conference by local rule, the order or notice shall: (i) require that a conference be held in the case; (ii) establish a deadline for the completion of the conference; (iii) state clearly that the parties have the right to designate their own mediator and state the deadline by which that designation should be made; (iv) state the rate of compensation of the court appointed mediator in the event that the parties do not exercise their right to designate a mediator; and (v) state that the parties shall be required to pay the mediator’s fee at the conclusion of the conference, unless otherwise ordered by the court. 7 TOC (3) Rule 1 local rule, the notice In judicial districts in which Scheduling Conferences. scheduling conferences are utilized to manage civil cases and for cases ordered to participate in a mediated settlement conference for the scheduling conference by shall: (i) require that a mediated settlement conference be held in the case; (ii) establish a deadline for the completion of the mediated settlement conference; (iii) state clearly that the parties have the right to designate their own mediator and state the deadline by which that designation should be made; (iv) state the rate of compensation of the court appointed mediator, in the event that the parties do not exercise their right to designate a mediator; and (v) state that the parties shall be required to pay the mediator’s fee at the conclusion of the mediated settlement conference, unless otherwise ordered by the court. (4) Application of Rule 1(c). The provisions in subsections (c)(2), (c)(5), and (c)(6) of this rule shall apply to mediated settlement conferences initiated by local rule under subsection (d) of this rule, except for the time limitations set out in those subsections. (5) Deadline for Completion. The provisions of Rule 3(b), which state the deadline for completion of the mediated settlement conference, shall not apply to mediated settlement conferences conducted under subsection (d) of this rule. The deadline for completion of the mediated settlement conference shall be set by the senior resident superior court judge or the judge’s designee at the scheduling conference or in the scheduling order or notice, whichever is applicable. However, the completion deadline set by the court shall be well in advance of the trial date. (6) Selection of the Mediator. The parties may designate, or the senior resident superior court judge may appoint, a mediator under Rule 2, except that the time limits for designation and appointment shall be set by local rule. All other provisions of Rule 2 shall apply to mediated settlement conferences that are conducted under subsection (d) of this rule. (7) Use of Other Settlement Procedures. The parties may utilize other settlement procedures under the provisions of subsection (c)(2) of this rule and Rule 10. However, the time limits and the method of moving the court for approval to utilize another settlement procedure set out in these rules shall not apply and shall be governed by local rules. Comment to Rule 1(c)(6). If a party is unable to pay the costs of the mediated settlement conference or lives a significant distance from the conference site, then the court Comment 8 TOC Rule 1 should consider Rule 4 or Rule 7 prior to dispensing with mediation for good cause. Rule 4 permits a party to attend the conference electronically, and Rule 7 permits parties to attend the conference and obtain relief from the obligation to pay the mediator’s fee. History Note. 373 N.C. 663; 374 N.C. 990.