Mediation of Matters Before the Clerk of Superior Court

(a) Purposes of Mandatory Mediation. These rules are promulgated under N.C.G.S. § 7A-38.3B to implement mediation in certain cases within the jurisdiction of the clerk of superior court. The procedures set out in these rules are designed to focus the parties’ attention on settlement and resolution, rather than on preparation for contested hearings, 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 other settlement efforts voluntarily, either prior to, or after, the filing of a matter with the clerk. (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 a party to a matter before the clerk, counsel shall discuss the options available to the parties to resolve their dispute through mediation and other settlement procedures without resort to a contested hearing. Counsel shall also discuss which settlement procedure and third party neutral would best suit their clients and the matter in dispute. (c) Initiating the Mediation by Order of the Clerk. (1) Order of the Clerk. The clerk of any county may, using an Order Regarding Mediation in Matters Before Clerk of Superior Court, Form AOC-G-301, order all persons identified in Rule 4 to attend mediation in any matter in which the clerk has original or exclusive jurisdiction, except in matters under Chapter 45 and Chapter 48 of the General Statutes of North Carolina and matters in which the jurisdiction of the clerk is ancillary. (2) Content of the Order. The order shall: a. b. c. d. e. require that a mediation be held in the case; establish deadlines for the selection of a mediator and completion of the mediation; state the names of the persons who shall attend the mediation; state clearly that the persons ordered to attend the mediation 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 5 TOC Rule 1 f. state that the parties shall be required to pay the mediator’s fee in shares determined by the clerk. (3) Motion for Court-Ordered Mediation. In matters not ordered to mediation, any party, interested person, or fiduciary may file a written motion with the clerk requesting that mediation be ordered. The motion shall state the reasons why the order should be allowed and shall be served in accordance with Rule 5 of the North Carolina Rules of Civil Procedure on the nonmovant, interested persons, and fiduciaries designated by the clerk or identified by the petitioner in the pleadings. Objections to the motion may be filed in writing within five days after the date of service of the motion. Thereafter, the clerk shall rule on the motion without a hearing and notify the parties or their attorneys of the ruling. (4) Informational Brochure. The clerk shall provide the parties with a brochure prepared by the Dispute Resolution Commission (Commission) explaining the mediation process and the operations of the Commission, along with a copy of both the order under subsection (c)(1) of this rule and the motion under subsection (c)(3) of this rule. (5) Motion to Dispense with Mediation. A named party, interested person, or fiduciary may move the clerk to dispense with a mediation ordered by the clerk. The motion shall state the reasons that relief is sought and shall be served on all persons ordered to attend the mediation and the mediator. For good cause shown, the clerk may grant the motion. (6) Dismissal of Petition for Adjudication of Incompetence. The petitioner shall not voluntarily dismiss a petition for adjudication of incompetence after a mediation is ordered. History Note. 373 N.C. 742.