N.C. Mediated Settlement Conf. R. 10

(a) Order Authorizing Other Settlement Procedures. Upon receipt of

a motion by the parties seeking authorization to utilize a settlement procedure in lieu

of a mediated settlement conference, the senior resident superior court judge may

order the use of the procedure requested under these rules or under local rules, unless

the court finds that the parties did not agree on all of the relevant details of the

procedure, including the items in Rule 1(c)(2), or that, for good cause, the selected

procedure is not appropriate for the case or the parties.

(b) Other Settlement Procedures Authorized by These Rules.

In addition to a mediated settlement conference, the following settlement procedures

are authorized by these rules:

(1) Neutral evaluation under Rule 11 (a settlement procedure in

which a neutral offers an advisory evaluation of the case following

summary presentations by each party).

(2) Nonbinding arbitration under Rule 12 (a settlement procedure in

which a neutral renders an advisory decision following summary

presentations of the case by the parties).

(3) Binding arbitration under Rule 12 (a settlement procedure in

which a neutral renders a binding decision following

presentations by the parties).

(4) A summary trial (jury or non-jury) under Rule 13 (a settlement

procedure that is either: (i) a nonbinding trial in which a privately

procured jury or presiding officer renders an advisory verdict

following summary presentations by the parties and, in the case

of a summary jury trial, a summary of the law presented by a

presiding officer; or (ii) a binding trial in which a privately

procured jury or presiding officer renders a binding verdict

following summary presentations by the parties and, in the case

of a summary jury trial, a summary of the law presented by a

presiding officer).

(c) General Rules Applicable to Other Settlement Procedures.

(1) When Proceeding Is Conducted. Other settlement procedures

ordered by the court under these rules shall be conducted no later

than the date for completion set out in the court’s original

mediated settlement conference order, unless extended by the

senior resident superior court judge.

(2) Authority and Duties of the Neutral.

a. Authority of the Neutral.

1. Control of the Proceeding. The neutral,

arbitrator, or presiding officer shall at all times be

in control of the proceeding and the procedures to be

followed.

2. Scheduling the Proceeding. The neutral,

arbitrator, or presiding officer shall attempt to

schedule the proceeding at a time that is convenient

to the participants, attorneys, and the neutral.

In the absence of agreement, the neutral shall select

the date for the proceeding.

b. Duties of the Neutral.

1. Informing the Parties. At the beginning of the

proceeding, the neutral, arbitrator, or presiding

officer shall define and describe for the parties:

i. the process of the proceeding;

ii. the differences between the proceeding and

other forms of conflict resolution;

iii. the costs of the proceeding;

iv. the inadmissibility of conduct and statements

as provided by N.C.G.S. § 7A-38.1(l) and

subsection (c)(6) of this rule; and

v. the duties and responsibilities of the neutral

and the participants.

2. Disclosure. The neutral has a duty to be impartial

and to advise all participants of any circumstances

bearing on possible bias, prejudice, or partiality.

3. Reporting Results of the Proceeding.

The neutral, arbitrator, or presiding officer shall

report the results of the proceeding to the court

using a Report of Neutral Conducting Settlement

Procedure Other Than Mediated Settlement

Conference or Arbitration in Superior Court Civil

Action, Form AOC-CV-817. The NCAOC may

require the neutral to provide statistical data for

evaluation of other settlement procedures.

4. Scheduling and Holding the Proceeding. It is

the duty of the neutral, arbitrator, or presiding

officer to schedule and conduct the proceeding prior

to the completion deadline set out in the court’s

order. The deadline for completion of the proceeding

shall be strictly observed by the neutral, arbitrator,

or presiding officer, unless the deadline is changed

by a written order of the senior resident superior

court judge.

(3) Extensions of Time. A party or a neutral may request that the

senior resident superior court judge extend the deadline for

completion of the settlement procedure. The request for an

extension shall state the reasons the extension is sought and shall

be served by the movant on the other parties and the neutral.

If the court grants the motion for an extension, then the order

shall set a new deadline for the completion of the settlement

procedure. A copy of the order shall be delivered to all parties and

the neutral by the person who sought the extension.

(4) Where the Proceeding Is Conducted. The neutral, arbitrator,

or presiding officer shall be responsible for reserving a place

agreed to by the parties, setting a time for and making other

arrangements for the proceeding, and for giving timely notice to

all attorneys and unrepresented parties in writing of the time and

location of the proceeding.

(5) No Delay of Other Proceedings. Settlement proceedings shall

not be the cause for a delay of other proceedings in the case,

including, but not limited to, the conduct or completion of

discovery, the filing or hearing of motions, or the trial of the case,

except by order of the senior resident superior court judge.

(6) Inadmissibility of Settlement Proceedings. Evidence of

statements made and conduct that occurs in a mediated

settlement conference or other settlement proceeding conducted

under this rule, whether attributable to a party, mediator,

neutral, or neutral-observer present at the settlement proceeding,

shall not be subject to discovery and shall be inadmissible in any

proceeding in the action or another civil action involving the same

claim, except:

a. in proceedings for sanctions under subsection (c) of this

rule;

b. in proceedings to enforce or rescind a settlement of the

action;

c. in disciplinary proceedings before the North Carolina State

Bar or any agency established to enforce the Standards of

Professional Conduct for Mediators or standards of conduct

for other neutrals; or

d. in proceedings to enforce laws concerning juvenile or elder

abuse.

As used in this subsection, “neutral observer” includes

persons seeking mediator certification, persons studying dispute

resolution processes, and persons acting as interpreters.

No settlement agreement to resolve any or all issues

reached at a proceeding conducted under this rule, or during its

recesses, shall be enforceable, unless the agreement has been

reduced to writing and signed by the parties or by the parties’

designees. No evidence otherwise discoverable shall be

inadmissible merely because it is presented or discussed in a

conference or other settlement proceeding.

No mediator, neutral, or neutral-observer present at a

settlement proceeding shall be compelled to testify or produce

evidence in any civil proceeding concerning statements made and

conduct that occurs in anticipation of, during, or as a follow-up to

a conference or other settlement proceeding under subsection (c)

of this rule. This includes proceedings to enforce or rescind a

settlement of the action, except to attest to the signing of any

agreements, and during proceedings for sanctions under this

section, proceedings to enforce laws concerning juvenile or elder

abuse, and disciplinary hearings before the North Carolina State

Bar or any agency established to enforce the Standards of

Professional Conduct for Mediators or standards of conduct for

other neutrals.

(7) No Record Made. There shall be no record made of any

proceedings under these rules, unless the parties have stipulated

to binding arbitration or a binding summary trial, in which case

any party, after giving adequate notice to opposing parties, may

make a record of the proceeding.

(8) Ex Parte Communications Prohibited. Unless all parties

agree otherwise, there shall be no ex parte communication prior

to the conclusion of the proceeding between the neutral and a

party or a party’s attorney on any matter related to the

proceeding, except about administrative matters.

(9) Duties of the Parties.

a. Attendance. All persons required to attend a mediated

settlement conference under Rule 4 shall attend any other

nonbinding settlement procedure authorized by these rules

and ordered by the court, except those persons to whom the

parties agree and the senior resident superior court judge

excuses. Those persons required to attend other settlement

procedures which are binding in nature, authorized by

these rules, and ordered by the court, shall be those

persons to whom the parties agree. Notice of the

agreement shall be given to the court and the neutral by

filing a Motion to Use Settlement Procedure Other Than

Mediated Settlement Conference in Superior Court Civil

Action and Order, Form AOC-CV-818.

b. Finalizing Agreement.

1. If an agreement that resolves all issues in the

dispute is reached at the neutral evaluation,

arbitration, or summary trial, then the parties to the

agreement shall reduce the terms of the agreement

to writing and sign it. A consent judgment or

voluntary dismissal shall be filed with the court by

such persons as the parties shall designate within

fourteen days of the conclusion of the proceeding or

before the expiration of the deadline for its

completion, whichever is later. The person

responsible for filing closing documents with the

court shall also sign the report to the court. The

parties shall give a copy of their signed agreement,

consent judgment, or voluntary dismissal to the

neutral, arbitrator, or presiding officer, and all

parties at the proceeding.

2. If an agreement that resolves all issues in the

dispute is reached prior to the evaluation,

arbitration, or summary trial, or while the

proceeding is in recess, then the parties shall reduce

the terms of the agreement to writing and sign the

writing and shall file a consent judgment or

voluntary dismissal disposing of all issues with the

court within fourteen days of the agreement or

before the expiration of the deadline for completion

of the proceeding, whichever is later.

3. A designee may sign the agreement on behalf of a

party only if the party does not attend the

evaluation, arbitration, or summary trial in person

and the party provides the neutral with a written

verification that the designee is authorized to sign

the agreement on the party’s behalf.

4. When an agreement is reached upon all issues in the

dispute, all attorneys of record must notify the

senior resident superior court judge within four

business days of the settlement and advise the judge

of the persons who will sign the consent judgment or

voluntary dismissal.

c. Payment of the Neutral’s Fee. The parties shall pay the

neutral’s fee as provided by subsection (c)(l2) of this rule.

(10) Selection of Neutrals in Other Settlement Procedures.

The parties may select any person to serve as a neutral in a

settlement procedure authorized under these rules.

For arbitration, the parties may either select a single arbitrator

or a panel of arbitrators. Notice of the parties’ selection shall be

given to the court and to the neutral by filing 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 after the entry of the

order requiring a mediated settlement conference.

The motion shall state: (i) the name, address, and

telephone number of the neutral; (ii) the rate of compensation of

the neutral; and (iii) that the neutral and opposing counsel have

agreed upon the selection and compensation.

(11) Disqualification. Any party may move the resident or presiding

superior court judge of the district in which an action is pending

for an order disqualifying the neutral and, for good cause, an

order disqualifying the neutral shall be entered. Good cause

exists if the selected neutral has violated any standards of

conduct of the North Carolina State Bar or any standards of

conduct for neutrals adopted by the Supreme Court.

(12) Compensation of the Neutral. A neutral’s compensation shall

be paid in an amount agreed to by the parties and the neutral.

Time spent reviewing materials in preparation for the neutral

evaluation, conducting the proceeding, and making and reporting

the award shall be compensable time.

Unless otherwise agreed by the parties or ordered by the

court, the neutral’s fee shall be paid in equal shares by the

parties. For purposes of this section, multiple parties shall be

considered one party when they are represented by the same

counsel. The presiding officer and jurors in a summary jury trial

are neutrals within the meaning of these rules and shall be

compensated by the parties.

(13) Sanctions for Failure to Attend Other Settlement

Procedure or Pay the Neutral’s Fee. Any person required to

attend a settlement proceeding or to pay a neutral’s fee in

compliance with N.C.G.S. § 7A-38.1 and these rules who fails to

attend the proceeding or pay the neutral’s fee without good cause

shall be subject to the contempt power of the court and any

monetary sanctions imposed by a resident or presiding superior

court judge. The monetary sanctions may include, but are not

limited to, the payment of fines, attorneys’ fees, the neutral’s fee,

expenses, and loss of earnings incurred by persons attending the

proceeding. A party seeking sanctions against a person or a

judge, upon his or her own motion, shall do so in a written motion

stating the grounds for the motion and the relief sought.

The motion shall be served on all parties and any person against

whom sanctions are being sought. If the court imposes sanctions,

it shall do so after giving notice to the person, holding a hearing,

and issuing a written order that contains both findings of fact that

are supported by substantial evidence and conclusions of law.