N.C. Stds. Prof'l Conduct for Mediators Standard 3

A mediator shall, subject to exceptions set forth below, maintain the

confidentiality of all information obtained within the mediation process.

(a) A mediator shall not disclose to any nonparticipant, directly or

indirectly, any information communicated to the mediator by a participant within the

mediation process, whether the information is obtained before, during, or after the

mediated settlement conference. A mediator’s filing of a copy of an agreement

reached in mediation with the appropriate court, under a statute that mandates such

filing, shall not be considered to be a violation of this subsection.

(b) A mediator shall not disclose to any participant, directly or indirectly,

any information communicated to the mediator in confidence by any other participant

in the mediation process, whether the information is obtained before, during, or after

the mediated settlement conference, unless the other participant gives the mediator

permission to do so. A mediator may encourage a participant to permit disclosure

but, absent permission, the mediator shall not disclose the information.

(c) A mediator shall not disclose to court officials or staff any information

communicated to the mediator by a participant within the mediation process,

whether before, during, or after the mediated settlement conference, including

correspondence or communications regarding scheduling or attendance, except as

required to complete a report of mediator form; provided, however, that when seeking

to collect a fee for services, the mediator may share correspondence or

communications from a participant relating to the fees of the mediator. Report of

mediator forms are available on the North Carolina Administrative Office of the

Court’s website at https://www.nccourts.gov.

(d) Notwithstanding the confidentiality provisions set forth in subsections

(a), (b), and (c) of this standard, a mediator may report otherwise confidential conduct

or statements made before, during, or after mediation in the following circumstances:

(1) If a mediator believes that communicating certain procedural

matters to court officials or staff will aid the mediation, then, with

the consent of the parties to the mediation, the mediator may do

so. In making a permitted disclosure, a mediator shall refrain

from expressing his or her personal opinion about a participant

or any aspect of the case to court officials or staff.

(2) If a statute or a mediation rule promulgated by a state or federal

agency requires or permits a mediator to testify, give an affidavit,

or tender a copy of an agreement reached in mediation to the

official designated by the statute or rule, then the mediator may

do so.

If, under the Rules for Settlement Procedures in District

Court Family Financial Cases or the Rules for Mediated

Settlement Conferences and Other Settlement Procedures in

Superior Court Civil Actions, a hearing is held on a motion for

sanctions for failure to attend a mediated settlement conference,

or for failure to pay the mediator’s fee, and the mediator who

mediated the dispute testifies, either as the movant or under a

subpoena, then the mediator shall limit his or her testimony to

facts relevant to a decision about the sanction sought and shall

not testify about statements made by a participant that are not

relevant to that decision.

(3) If a mediator is subpoenaed and ordered to testify or produce

evidence in a criminal action or proceeding as provided in

N.C.G.S. § 7A-38.1(1), N.C.G.S. § 7A-38.4A(j), and

N.C.G.S. § 7A-38.3B(g), then the mediator may do so.

(4) If public safety is at issue, then a mediator may disclose otherwise

confidential information to participants, nonparticipants, law

enforcement personnel, or other persons potentially affected by

the harm, if:

a. a party to, or a participant in, the mediation has

communicated to the mediator a threat of serious bodily

harm or death to any person, and the mediator has reason

to believe the party has the intent and ability to act on the

threat;

b. a party to, or a participant in, the mediation has

communicated to the mediator a threat of significant

damage to real or personal property, and the mediator has

reason to believe the party has the intent and ability to act

on the threat; or

c. a party or other participant’s conduct during the mediation

results in direct bodily injury or death to a person.

(5) If a party to, or a participant in, a mediation has filed a complaint

with the Commission, the North Carolina State Bar, or another

professional licensing board established by the North Carolina

General Assembly regarding a mediator’s professional conduct,

moral character, or fitness to practice as a mediator, then the

mediator may reveal otherwise confidential information for the

purpose of defending himself or herself against the complaint.

(6) If a party to, or a participant in, a mediation has filed a lawsuit

against a mediator for damages or other relief regarding the

mediator’s professional conduct, moral character, or fitness to

practice as a mediator, then the mediator may reveal otherwise

confidential information for the purpose of defending himself or

herself in the action.

(7) With the permission of all parties, a mediator may disclose

otherwise confidential information to an attorney who now

represents a party in a case previously mediated by the mediator

and in which no settlement was reached. The disclosure shall be

intended to help the newly involved attorney understand any

offers extended during the mediation process and any

impediments to settlement. A mediator who discloses otherwise

confidential information under this subsection shall take great

care, especially if some time has passed, to ensure that their recall

of the discussion is clear, that the information is presented in an

unbiased manner, and that no confidential information is

revealed.

(8) If a mediator is a lawyer licensed by the North Carolina State Bar

and another lawyer makes statements or engages in conduct that

is reportable under subsection (d)(4) of this standard, then the

mediator shall report the statements or conduct to either the

North Carolina State Bar or the court having jurisdiction over the

matter, in accordance with Rule 8.3(e) of the North Carolina

Rules of Professional Conduct.

(9) If a mediator concludes that, as a matter of safety, the mediated

settlement conference should be held in a secure location, such as

the courthouse, then the mediator may seek the assistance of

court officials or staff in securing a location, so long as the specific

circumstances of the parties’ dispute are not identifiable.

(10) If a mediator or mediator-observer witnesses concerning behavior

of an attorney during a mediation, then that behavior may be

reported to the North Carolina Lawyer Assistance Program for

the purpose of providing assistance to the attorney for alcohol or

substance abuse.

In making a permitted disclosure under this standard, a mediator should make

every effort to protect the confidentiality of noncomplaining parties or participants in

the mediation, refrain from expressing his or her personal opinion about a

participant, and avoid disclosing the identities of the participants or the specific

circumstances of the parties’ dispute.

(e) “Court officials or staff,” as used in this standard, includes court officials

or staff of North Carolina state and federal courts, state and federal administrative

agencies, and community mediation centers.

(f) The duty of confidentiality as set forth in this standard encompasses

information received by the mediator and then disseminated to a nonmediator

employee or nonmediator associate who is acting as an agent of the mediator.

(1) A mediator who individually or together with other professionals

employs and/or utilizes a nonmediator in the practice, firm, or

organization shall make reasonable efforts to ensure that the

practice, firm, or organization has provided reasonable assurance

that the nonmediator’s conduct is compatible with the

professional obligations of the mediator.

a. A mediator having direct, or indirect, supervisory

authority over the nonmediator shall make reasonable

efforts to ensure that the nonmediator’s conduct is

compatible with the ethical obligations of the mediator.

b. A mediator may share confidential files with the

nonmediator provided the mediator properly supervises

the nonmediator to ensure the preservation of party

confidences.

c. A mediator shall be responsible for the nonmediator’s

actions, or inactions, that would be a violation of these

standards if:

1. the mediator orders or, with the knowledge of the

specific conduct, ratifies the conduct; or

2. the mediator has managerial or direct supervisory

authority over the nonmediator and knows of the

conduct at a time when its consequences can be

avoided or mitigated but fails to take reasonable

remedial action to avoid the consequences.

(2) A mediator who individually or together with other professionals

employs and/or utilizes a nonmediator in the practice, firm, or

organization shall make reasonable efforts to ensure that the

nonmediator’s conduct is compatible with the provisions set forth

in subsections (c) and (d) of this standard.

(g) Nothing in this standard prohibits the use of information obtained in a

mediation for instructional purposes or for the purpose of evaluating or monitoring

the performance of a mediator, mediation organization, or dispute resolution

program, so long as the parties or the specific circumstances of the parties’

controversy are not identifiable.