Mediation

In conference on January 23, 2020, the Supreme Court of North Carolina adopted orders amending seven rule sets that affect mediation in North Carolina. These Rules/Standards will become effective on March 1, 2020.

To view the newly adopted Rules/Standards, please visit the Supreme Court’s webpage.

Below is a brief explanation about the changes.

 MSC Rules:

Rule 2(d) (formerly Rule 2.E.) clarifies that a mediator has the ability to file a Notice to Withdraw from a mediation, as well as being disqualified to conduct a mediation. Rule 4(a)(1)3 (formerly Rule 4.A(1)(a)(iii) allows for certain parties to represent a governmental entity at the mediation settlement conference so long as the party has a certain authority to act on behalf of the governmental entity. This Rule also includes a reference to NCGS 159-28(a) notifying the mediator that any agreement reached with a governmental agency may be subject to this statute. The comment section under Rule 4 and Rule 6, expends on this concept by providing additional language on the statute.

Rule 8(a)(2)a2 (formerly Rule 8.B(1)) has been modified to use the NC State Bar threshold requirements to determine if an out-of-state attorney applicant qualifies for mediator certification.

Rule 8(a)(4) (formerly Rule 8.E) has been modified to clarify what items are reportable on an Application for Certification; this changes encourages full and complete disclosure to staff and the Commission.

 Rule 15(a) (formerly Rule 15.A) has been modified to expand the definition of a senior resident superior court judge to include a special superior court judge, (business court judges) and to any judge who is assigned to a case under Rule 2.1 of the General Rules of Practice for the Superior and District Courts.

FFS Rules:

Rule 2(d) (formerly Rule 2.D) clarifies that a mediator has the ability to file a Notice to Withdraw from a mediation, as well as being disqualified to conduct a mediation.

Rule 8(2)b1 (formerly Rule 8.A(2)) has been modified to use the NC State Bar threshold requirements to determine if an out-of-state attorney applicant qualifies for mediator certification.

Rule 8(a)(7) (formerly Rule 8.F) has been modified to clarify what items are reportable on an Application for Certification; this changes encourages full and complete disclosure to staff and the Commission.

Standards of Conduct:

Standard 3 (formerly III) Confidentiality. The changes to the Standards expand on the ability of the mediator to reveal otherwise confidential information in specific situations;

 • Testifying in a civil action regarding mediator fees;

• Being called to testify in a criminal action;

• Defending him/herself against a complaint with the DRC or the NC State Bar;

• Defending him/herself in a civil action regarding the mediator’s professional conduct

• The ability to speak with an attorney coming into a matter, post-mediation, where the mediation failed to settle, and all parties agree to communication;

• Seeking scheduling assistance from court officials or staff; and

• If the mediator witnesses concerning behavior of an attorney during mediation.

• If the mediator concludes that, as a matter of safety, that the mediated settlement conference needs to be held in a secure location, the mediator may seek out a location to hold the mediation such as a courthouse. The mediator may seek out the assistance of court officials or staff to help secure meeting space. The mediator may not disclose the specific dispute of the parties.

 In making permitted disclosures under Standard 3, the mediator should make every effort to protect the confidentiality of non-complaining parties to or participants in the mediation, refrain from expressing personal opinions about a participant, and avoid disclosing the participants or the specific circumstances of the parties’ controversy.