N.C. Dispute Resol. Comm'n R. 10

(a) Appointment of the Mediator Certification and Training

Committee. The Commission’s chair shall appoint a standing committee entitled

the Mediator Certification and Training Committee to review the matters set forth

in subsection (b) of this rule.

(b) Matters to Be Considered by the Mediator Certification and

Training Committee. The Mediator Certification and Training Committee shall

review and consider matters arising under this subsection.

(1) Commission staff may raise with the Mediator Certification and

Training Committee’s chair matters relating to the issuance of

provisional pre-training approvals and that pertain to an

applicant’s education, work experience, training, or any other

requirement for mediator certification unrelated to moral

character, conduct, or fitness to practice, including a request that

the chair review a staff determination not to issue a provisional

pre-training approval.

(2) Commission staff may raise with the Mediator Certification and

Training Committee’s chair or the full committee matters that

relate to the education, work experience, training, or other

qualifications of an applicant for mediator certification unrelated

to moral character, conduct, or fitness to practice. Appeals of staff

determinations to deny an application based on a deficiency in the

applicant’s education, work experience, and/or training, or his or

her failure to meet other requirements for certification unrelated

to moral character, conduct, or fitness to practice, shall be

brought before the full committee. Appeals shall be in writing

and be sent to the Commission’s office within thirty days of the

date of the actual delivery of the notice of denial to the applicant

or within thirty days of the date of the last attempted delivery by

the U.S. Postal Service.

(3) Commission staff may raise with the Mediator Certification and

Training Committee’s chair or the full committee matters that

pertain to applications for mediator training program

certification or certification renewal that are unrelated to the

moral character, conduct, or fitness to practice of training

program personnel. Appeals of staff decisions to deny an

application for mediator training program certification or

certification renewal shall be brought before the full committee.

Appeals shall be in writing and be sent to the Commission’s office

within thirty days of the date of the actual delivery of the notice

of denial to the applicant or within thirty days of the date of the

last attempted delivery by the U.S. Postal Service.

(c) Commission Staff Review of Qualifications.

(1) Review of Provisional Pre-training Approvals. Commission

staff shall review requests for the issuance of provisional

pre-training approvals, seeking guidance from the Mediator

Certification and Training Committee chair, as necessary, and

shall issue approvals in instances where the person seeking the

approval appears to meet all education, work experience, and

other requirements established for mediator certification by

program rules and Commission policies, except that any matters

relating to the moral character, conduct, or fitness to practice of

the person requesting the approval shall be put before the

Grievance and Disciplinary Committee or its chair under Rule 9.

Staff may contact those requesting approvals, any third party or

entity with relevant information about the requesting person, and

may consider any other information acquired during the review

process that bears on the requesting person’s qualifications.

If, after review, the chair determines that the person requesting

the provisional pre-training approval does not meet the requisite

criteria for certification established by program rules and

Commission policies, then the chair shall instruct staff not to

issue the pre-training approval. That determination shall be final

and is not subject to appeal by the person requesting the

provisional pre-training approval.

(2) Review of Information Obtained During the Mediator

Certification Process. Commission staff shall review all

applications for mediator certification to determine whether the

applicant meets the qualifications for certification unrelated to

moral character, conduct, or fitness to practice set forth in

program rules adopted by the Supreme Court for mediated

settlement conferences or mediation programs under the

jurisdiction of the Commission and any policies adopted by the

Commission for the purpose of implementing those rules.

Staff may contact an applicant to request additional information,

may contact third parties or entities with relevant information

about the applicant, and may consider any other information

acquired during the review process that bears on the applicant’s

eligibility for certification.

(3) Review of Mediator Training Program Certification

Applications and Certification Renewal Applications.

Commission staff shall review all mediator training program

applications for certification and certification renewal, including

reviewing mediator training program agendas, handouts, role

plays, and trainer qualifications, to ensure compliance with

program rules and Commission policies relating to mediator

training programs, except that any matters relating to the moral

character, conduct, or fitness to practice of training program

personnel shall be put before the Grievance and Disciplinary

Committee or its chair under Rule 9. Staff may seek clarification

and additional information from training program personnel and

training program registrants and attendees, as necessary.

(d) Mediator Certification and Training Committee Review.

(1) Duty to Review. The Mediator Certification and Training

Committee shall review all matters brought before it by

Commission staff under the provisions of subsections (b)(2) and

(b)(3) of this rule. The chair may, in his or her discretion, appoint

members of the committee to serve on a subcommittee to review

a particular matter brought to the committee by staff. The chair

or his or her designee may issue subpoenas for the attendance of

witnesses and for the production of books, papers, materials, or

other documentary evidence deemed necessary to any such

review. The chair or designee may contact the following persons

and entities for information concerning an applicant for mediator

certification, mediator training program certification, or mediator

training program certification renewal:

a. All references, employers, colleges, professional licensing

or certification bodies, and other individuals or entities

cited in applications and any additional persons or entities

identified by Commission staff during the course of its

review as having relevant information about the

qualifications of an applicant for mediator certification,

mediator training program certification, or mediator

training program certification renewal.

b. Personnel affiliated with an applicant for mediator

training program certification or mediator training

program certification renewal, and those who registered for

or have completed the training program.

(1)

TOC Rule 10

All information in Commission files pertaining to requests

for provisional pre-training approvals, initial certification

applications of a mediator or mediator training program, or

renewals of such certifications shall be confidential, except as

provided in N.C.G.S. § 7A-38.2(h) or these rules.

(2) Probable Cause Determination. The members of the

Mediator Certification and Training Committee who are eligible

to vote shall deliberate to determine whether probable cause

exists to believe that an applicant for mediator certification,

mediator training program certification, or mediator training

program certification renewal:

a. does not meet the qualifications for mediator certification

unrelated to moral character, conduct, or fitness to practice

as set forth in program rules adopted by the Supreme

Court for mediated settlement conferences or mediation

programs under the jurisdi ction of the Commission or the

policies adopted by the Commission for the purpose of

implementing those rules; or

b. does not meet the requirements for mediator training

program certification or mediator training program

certification renewal unrelated to moral character,

conduct, or fitness to practice as set forth in program rules

adopted by the Supreme Court for mediated settlement

conferences or mediation programs under the jurisdiction

of the Commission or the policies adopted by the

Commission for the purpose of implementing those rules.

If probable cause is found, then the application shall be denied.

(3) Authority of Mediator Certification and Training

Committee to Deny an Application for Certification or

Mediator Training Program Certification Renewal.

a. If a majority of the Mediator Certification and Training

Committee members who are reviewing a matter and

eligible to vote find no probable cause under subsection

(d)(2) of this rule, then Commission staff shall be

instructed to certify the applicant for mediator certification

or to certify or recertify the mediator training program.

b. If a majority of the Mediator Certification and Training

Committee members reviewing a matter and eligible to

vote finds probable cause under subsection (d)(2) of this

rule, then the committee shall deny the application for

mediator certification or mediator training program

certification or mediator training program certification

renewal. The committee’s determination to deny the

application shall be in writing, shall set forth the

deficiencies the committee found in the application, and

shall be forwarded to the applicant. Notification of the

determination shall be by Certified Mail, return receipt

requested, and such service shall be deemed sufficient for

purposes of these rules. A copy of the notice shall also be

sent to the applicant through the U.S. Postal Service by

First-Class Mail.

c. If the Mediator Certification and Training Committee

denies an application for mediator certification, mediator

training program certification, or mediator training

program certification renewal, then the applicant may

appeal the denial to the Commission within thirty days

from the date of the actual delivery of the notice of denial

to the applicant or within thirty days from the date of the

last attempted delivery by the U.S. Postal Service.

Notification of an appeal must be in writing and directed

to the Commission’s office. If no appeal is filed within

thirty days as set out herein, then the applicant shall be

deemed to have accepted the committee’s findings and

determination.

(e) Appeal of the Denial of Application for Mediator Certification,

Mediator Training Program Certification, or Mediator Training Program

Certification Renewal to the Commission.

(1) The Commission Shall Meet to Consider Appeals. In the

discretion of the Commission’s chair, an appeal by an applicant to

the Commission of a Mediator Certification and Training

Committee determination under subsection (d)(2) of this rule

shall be heard either by (i) a five-member panel of Commission

members chosen by the chair or his or her designee, or (ii) the

members of the full Commission. Any members of the committee

who participated in issuing the committee’s determination shall

be recused and shall not participate in the hearing.

Under Rule 3(c), members of the Commission shall recuse

themselves from hearing the matter when they cannot act

impartially. No matter shall be heard and decided by less than

three Commission members.

(2) Conduct of the Hearing.

a. At least thirty days prior to the hearing before the

Commission or panel, Commission staff shall forward to

the appealing party, special counsel to the Commission, if

appointed, and members of the Commission or panel who

will hear the matter, a copy of all documents considered by

the Mediator Certification and Training Committee and

the names of the members of the Commission or panel who

will hear the matter. Any written challenge questioning

the neutrality of a member of the Commission or panel

shall be directed to and decided by the Commission’s chair

or designee. A written challenge shall be filed with the

Commission no later than seven days from the date the

person filing the challenge received notice of the members

who will hear the appeal.

b. Hearings conducted by the Commission or a panel under

this rule shall be de novo.

c. If, in the discretion of the Commission’s chair, a panel is

empaneled to hear the appeal, then the Commission’s chair

or designee shall appoint one of the members of the panel

to serve as the presiding officer at the hearing before the

panel. The Commission’s chair or designee shall serve as

the presiding officer at a hearing before the full

Commission. The presiding officer shall have such

jurisdiction and powers as are necessary to conduct a

proper and efficient hearing and disposition of the matter

on appeal. The presiding officer may administer oaths and

may issue subpoenas for the attendance of witnesses and

the production of books, papers, or other documentary

evidence.

d. Nothing herein shall restrict the chair of the Commission

from serving on a panel or serving as its presiding officer

at any hearing held under the provisions of subsection (e)

of this rule.

e. Special counsel supplied by the North Carolina Attorney

General, at the request of the Commission or otherwise

employed by the Commission, may present evidence in

support of the denial of certification or recertification.

f. The Commission or panel, through its counsel, and the

applicant or the applicant’s representative may present

evidence in the form of sworn testimony and/or written

documents. The Commission or panel, through its counsel,

and the applicant may cross-examine any witness called to

testify at the hearing. The Rules of Evidence shall not

apply, except as to privilege, but shall be considered as a

guide toward a full and fair development of the facts.

Commission or panel members may question any witness

called to testify at the hearing. The Commission or panel

shall consider all evidence presented and give the evidence

appropriate weight and effect.

g. Hearings shall be conducted in private unless the applicant

requests a public hearing.

h. An applicant and any witnesses or others identified as

having relevant information about the matter may appear

at the hearing with or without counsel.

i. In the event that the applicant fails to appear without good

cause, the Commission or panel shall proceed to hear from

the witnesses who are present and make a determination

based on the evidence presented at the proceeding.

j. Proceedings before the Commission or panel shall be

conducted informally, but with decorum.

(3) Date of the Hearing. An appeal of any determination by the

Mediator Certification and Training Committee to deny an

application for mediator certification, mediator training program

certification, or mediator training program certification renewal

shall be heard by the Commission no later than 180 days from the

date the notice of appeal is filed with the Commission, unless

waived in writing by the applicant.

(4) Notice of the Hearing. The Commission’s office shall serve on

all parties by Certified Mail, return receipt requested, notice of

the date, time, and place of the hearing no later than sixty days

prior to the hearing, and such service shall be deemed sufficient

for the purposes of these rules. A copy of the hearing notice shall

also be sent through the U.S. Postal Service by First-Class Mail.

(5) Ex Parte Communications. With the exception of Commission

staff, no person shall have any ex parte communication with a

member of the Commission concerning the subject matter of the

appeal. Communications regarding scheduling matters shall be

directed to staff.

(6) Attendance. The presiding officer may, in his or her discretion,

permit an attorney to represent a party by telephone or through

video conference or allow witnesses to testify by telephone or

through video conference, with such limitations and conditions as

are just and reasonable. If an attorney or witness wishes to

appear by telephone or video conference, then he or she shall

notify Commission staff at least twenty days prior to the

proceeding. At least five days prior to the proceeding, staff must

be provided with the contact information of those who will

participate by telephone or video conference.

(7) Witnesses. The presiding officer shall exercise his or her

discretion with respect to the attendance and number of

witnesses who appear, voluntarily or involuntarily, for the

purpose of ensuring the orderly conduct of the proceeding.

At least ten days prior to the hearing, each party shall forward to

the Commission’s office and to all other parties the names of all

witnesses who each intends to call to testify.

(8) Rights of the Applicant at the Hearing.

applicant may:

a. appear personally and be heard;

b. be represented by counsel;

c. call and examine witnesses;

d. offer exhibits; and

e. cross-examine witnesses.

At the hearing, the

(9) Transcript. The Commission shall retain a court reporter to

keep a record of the proceeding. Any applicant who wishes to

obtain a transcript of the record may do so at his or her own

expense by contacting the court reporter directly. The only official

record of the proceeding shall be the one made by the court

reporter retained by the Commission. Copies of a tape,

noncertified transcript, or record made by a court reporter

retained by a party are not part of the official record.

(10) Commission Deliberation. The members of the Commission or

panel shall deliberate to determine whether clear, cogent, and

convincing evidence exists to believe that the education, work

experience, training, or other qualifications of an applicant for

mediator certification unrelated to moral character, conduct, or

fitness to practice, fail to meet the requirements for certification

set forth in program rules and/or Commission policies, or whether

the qualifications of a mediator training program seeking

certification or certification renewal fail to meet any of the

requirements for certification or certification renewal unrelated

to the moral character, conduct, or fitness to practice of mediator

training program personnel set forth in program rules and/or

Commission policies.

(11) Commission Decision. After the hearing, a majority of the

Commission members hearing the appeal or the panel may find

that:

a. there is not clear, cogent, and convincing evidence to

support a denial of certification, and instruct Commission

staff to certify the applicant for mediator certification or to

certify or recertify the applicant for mediator training

program certification; or

b. there is clear, cogent, and convincing evidence that

grounds exist to deny the application for mediator

certification or mediator training program certification or

mediator training program certification renewal.

The Commission or panel shall set forth its findings of fact,

conclusions of law, and decision to deny certification or

certification renewal in writing and serve its decision on the

applicant within sixty days from the date the hearing is

concluded. A copy of the decision shall be sent by Certified Mail,

return receipt requested, and such service shall be deemed

sufficient for purposes of these rules. A copy of the decision shall

also be sent through the U.S. Postal Service by First-Class Mail.

(12) Appeals. The Superior Court, Wake County, shall have

jurisdiction over appeals of Commission or panel decisions

denying an application for certification of a mediator or mediator

training program or mediator training program renewal.

The decision denying certification or renewal of mediator training

program certification under this rule shall be reviewable upon

appeal if the entire record, as submitted, is reviewed to determine

whether the decision is supported by substantial evidence.

A notice of appeal shall be filed in the Superior Court, Wake

County, no later than thirty days from the date of the actual

delivery to the applicant of the decision denying certification or

mediator training program certification renewal, or within thirty

days from the last attempted delivery by the U.S. Postal Service.

(13) New Application Following Denial of Initial Application

for Certification or Mediator Training Program

Certification Renewal. An applicant whose application for

mediator or mediator training program certification has been

denied, or a mediator training program whose application for

certification renewal has been denied, may reapply for

certification under this rule.

Except as otherwise provided by the Mediator Certification

and Training Committee, Commission, or a panel of the

Commission, no new application for mediator certification

following a denial may be tendered within two years of the date

of the denial of the application for mediator certification. A new

application for mediator training program certification may be

tendered at any time the applicant believes that the program has

met the qualifications for mediator training program

certification.

a. A new application following a denial shall be made in

writing, verified by the applicant, and filed with the

Commission’s office.

b. The new application following a denial shall contain:

1. the name and address of the applicant;

2. a concise statement of the reasons upon which the

denial was based;

3. a concise statement of facts alleged to meet

respondent’s burden of proof as set forth in

subsection (e)(13)(g) of this rule; and

4. a statement consenting to a criminal background

check, signed by the applicant or petitioner; or, if the

applicant or petitioner is a mediator training

program, by the trainers or instructors affiliated

with the program.

c. The new application for certification may also contain a

request for a hearing on the matter to consider any

additional evidence that the applicant wishes to submit.

An application from a mediator training program for

certification or certification renewal may contain a request

for a hearing on the matter to consider any additional

evidence regarding the effectiveness of the program and/or

the qualifications of its personnel.

d. Commission staff shall refer the new application to the

Commission for review. In the discretion of the

Commission’s chair, the chair or designee may (i) appoint

a five-member panel of Commission members to review the

matter, or (ii) put the matter before the Commission for

review. The panel shall not include any members of the

Commission who were involved in a prior determination

involving the applicant or petitioner. Members of the

Commission shall recuse themselves from reviewing any

matter if they cannot act impartially. Any challenges

questioning the neutrality of a member reviewing the

matter shall be decided by the Commission’s chair or

designee. No matter shall be heard and decided by less

than three Commission members.

e. If the applicant does not request a hearing under

subsection (e)(13)(c) of this rule, then the Commission or

panel shall review the application and shall decide whether

to grant or deny the new application for mediator

certification or mediator training program certification or

certification renewal after denial within ninety days from

the filing of the new application. That decision shall be

final.

If the applicant requests a hearing, then it shall be

held within 180 days from the filing of the new application,

unless the time limit is waived by the applicant in writing.

The Commission shall conduct the hearing consistent with

subsection (e)(2) of this rule. In the discretion of the chair

of the Commission, the hearing shall be conducted before

the Commission or a panel appointed by the chair. At the

hearing, the applicant may:

1. appear personally and be heard;

2. be represented by counsel;

3. call and examine witnesses;

4. offer exhibits; and

5. cross-examine witnesses.

f. At the hearing, the Commission may call witnesses, offer

exhibits, and examine the applicant and witnesses.

g. The burden of proof shall be upon the applicant to establish

by clear, cogent, and convincing evidence that:

1. the applicant has satisfied the qualifications that led

to the denial;

2. the applicant has completed any paperwork

required for certification, including, but not limited

to, the completion of an approved application form

and execution of a release to conduct a background

check, and paid any required certification fees; and

3. the applicant, if a mediator training program, has

corrected any deficiencies as required by enabling

legislation, program rules, or Commission policies,

and has addressed and resolved any issues related

to the qualifications of any persons affiliated with

the program unrelated to moral character, conduct,

or fitness to practice.

h. If the applicant has established that the conditions set

forth in subsection (e)(13)(g) of this rule have been met by

clear, cogent, and convincing evidence, and is entitled to

have the application approved, then the Commission shall

certify the applicant.

i. The Commission or panel shall set forth its decision to

certify the applicant or to deny certification in writing,

making findings of fact and conclusions of law.

The decision shall be sent by Certified Mail, return receipt

requested, within sixty days from the date of the hearing.

Such service shall be deemed sufficient for purposes of

these rules. A copy of the decision shall also be sent

through the U.S. Postal Service by First-Class Mail.

j. The Superior Court, Wake County, shall have jurisdiction

over appeals of Commission decisions to deny certification

or certification renewal under subsection (e)(13) of this

rule. A decision denying certification or certification

renewal under this section shall be reviewable upon

appeal, and the entire record, as submitted, shall be

reviewed to determine whether the decision is supported

by substantial evidence. Notice of appeal shall be filed in

the Superior Court, Wake County, no later than thirty days

from the date of the actual delivery of the decision to the

applicant, or thirty days from the date of the last attempted

delivery by the U.S. Postal Service. A copy of the decision

shall also be sent to applicant through the U.S. Postal

Service by First-Class Mail.