§ 7A‑38.1. Mediatedsettlement conferences in superior court civil actions.
(a) Purpose. TheGeneral Assembly finds that a system of court‑ordered mediated settlementconferences should be established to facilitate the settlement of superiorcourt civil actions and to make civil litigation more economical, efficient,and satisfactory to litigants and the State. Therefore, this section is enactedto require parties to superior court civil actions and their representatives toattend a pretrial, mediated settlement conference conducted pursuant to thissection and pursuant to rules of the Supreme Court adopted to implement thissection.
(b) Definitions. Asused in this section:
(1) "Mediatedsettlement conference" means a pretrial, court‑ordered conference ofthe parties to a civil action and their representatives conducted by amediator.
(2) "Mediation"means an informal process conducted by a mediator with the objective of helpingparties voluntarily settle their dispute.
(3) "Mediator"means a neutral person who acts to encourage and facilitate a resolution of apending civil action. A mediator does not make an award or render a judgment asto the merits of the action.
(c) Rules of procedure. The Supreme Court may adopt rules to implement this section.
(d) Statewideimplementation. Mediated settlement conferences authorized by this sectionshall be implemented in all judicial districts as soon as practicable, asdetermined by the Director of the Administrative Office of the Courts.
(e) Cases selected formediated settlement conferences. The senior resident superior court judge ofany participating district may order a mediated settlement conference for anysuperior court civil action pending in the district. The senior residentsuperior court judge may by local rule order all cases, not otherwise exemptedby the Supreme Court rule, to mediated settlement conference.
(f) Attendance ofparties. The parties to a superior court civil action in which a mediatedsettlement conference is ordered, their attorneys and other persons or entitieswith authority, by law or by contract, to settle the parties' claims shallattend the mediated settlement conference unless excused by rules of theSupreme Court or by order of the senior resident superior court judge. Nothingin this section shall require any party or other participant in the conferenceto make a settlement offer or demand which it deems is contrary to its bestinterests.
(g) Sanctions. Anyperson required to attend a mediated settlement conference or other settlementprocedure under this section who, without good cause, fails to attend or failsto pay any or all of the mediator's or other neutral's fee in compliance withthis section and the rules promulgated by the Supreme Court to implement thissection is subject to the contempt powers of the court and monetary sanctionsimposed by a resident or presiding superior court judge. The monetary sanctionsmay include the payment of fines, attorneys' fees, mediator and neutral fees,and the expenses and loss of earnings incurred by persons attending theprocedure. A party seeking sanctions against another party or person shall doso in a written motion stating the grounds for the motion and the reliefsought. The motion shall be served upon all parties and upon any person againstwhom the sanctions are being sought. The court may initiate sanctionproceedings upon its own motion by the entry of a show cause order. If thecourt imposes sanctions, it shall do so, after notice and a hearing, in awritten order, making findings of fact and conclusions of law. An orderimposing sanctions shall be reviewable upon appeal where the entire record assubmitted shall be reviewed to determine whether the order is supported bysubstantial evidence.
(h) Selection ofmediator. The parties to a superior court civil action in which a mediatedsettlement conference is to be held pursuant to this section shall have theright to designate a mediator. Upon failure of the parties to designate amediator within the time established by the rules of the Supreme Court, amediator shall be appointed by the senior resident superior court judge.
(i) Promotion of othersettlement procedures. Nothing in this section is intended to preclude theuse of other dispute resolution methods within the superior court. Parties to asuperior court civil action are encouraged to select other available disputeresolution methods. The senior resident superior court judge, at the request ofand with the consent of the parties, may order the parties to attend andparticipate in any other settlement procedure authorized by rules of theSupreme Court or by the local superior court rules, in lieu of attending amediated settlement conference. Neutral third parties acting pursuant to thissection shall be selected and compensated in accordance with such rules orpursuant to agreement of the parties. Nothing in this section shall prohibitthe parties from participating in, or the court from ordering, other disputeresolution procedures, including arbitration to the extent authorized underState or federal law.
(j) Immunity. Mediatorand other neutrals acting pursuant to this section shall have judicial immunityin the same manner and to the same extent as a judge of the General Court ofJustice, except that mediators and other neutrals may be disciplined inaccordance with enforcement procedures adopted by the Supreme Court pursuant toG.S. 7A‑38.2.
(k) Costs of mediatedsettlement conference. Costs of mediated settlement conferences shall beborne by the parties. Unless otherwise ordered by the court or agreed to by theparties, the mediator's fees shall be paid in equal shares by the parties. Forpurposes of this section, multiple parties shall be considered one party whenthey are represented by the same counsel. The rules adopted by the SupremeCourt implementing this section shall set out a method whereby parties found bythe court to be unable to pay the costs of the mediated settlement conferenceare afforded an opportunity to participate without cost. The rules adopted bythe Supreme Court shall set the fees to be paid a mediator appointed by a judgeupon the failure of the parties to designate a mediator.
(l) Inadmissibility ofnegotiations. Evidence of statements made and conduct occurring in a mediatedsettlement conference or other settlement proceeding conducted under thissection, whether attributable to a party, the mediator, other neutral, or aneutral observer present at the settlement proceeding, shall not be subject todiscovery and shall be inadmissible in any proceeding in the action or othercivil actions on the same claim, except:
(1) In proceedings forsanctions under this section;
(2) In proceedings toenforce or rescind a settlement of the action;
(3) In disciplinaryproceedings before the State Bar or any agency established to enforce standardsof conduct for mediators or other neutrals; or
(4) In proceedings toenforce laws concerning juvenile or elder abuse.
As used in this section, theterm "neutral observer" includes persons seeking mediatorcertification, persons studying dispute resolution processes, and personsacting as interpreters.
No settlement agreement toresolve any or all issues reached at the proceeding conducted under thissubsection or during its recesses shall be enforceable unless it has beenreduced to writing and signed by the parties. No evidence otherwisediscoverable shall be inadmissible merely because it is presented or discussedin a mediated settlement conference or other settlement proceeding.
No mediator, other neutral, orneutral observer present at a settlement proceeding shall be compelled totestify or produce evidence concerning statements made and conduct occurring inanticipation of, during, or as a follow‑up to a mediated settlementconference or other settlement proceeding pursuant to this section in any civilproceeding for any purpose, including proceedings to enforce or rescind asettlement of the action, except to attest to the signing of any agreements,and except proceedings for sanctions under this section, disciplinary hearingsbefore the State Bar or any agency established to enforce standards of conductfor mediators or other neutrals, and proceedings to enforce laws concerningjuvenile or elder abuse.
(m) Right to jury trial. Nothing in this section or the rules adopted by the Supreme Courtimplementing this section shall restrict the right to jury trial. (1995, c. 500, s. 1; 1999‑354,s. 5; 2005‑167, s. 1; 2008‑194, s. 8(a).)
§ 7A‑38.1. Mediatedsettlement conferences in superior court civil actions.
(a) Purpose. TheGeneral Assembly finds that a system of court‑ordered mediated settlementconferences should be established to facilitate the settlement of superiorcourt civil actions and to make civil litigation more economical, efficient,and satisfactory to litigants and the State. Therefore, this section is enactedto require parties to superior court civil actions and their representatives toattend a pretrial, mediated settlement conference conducted pursuant to thissection and pursuant to rules of the Supreme Court adopted to implement thissection.
(b) Definitions. Asused in this section:
(1) "Mediatedsettlement conference" means a pretrial, court‑ordered conference ofthe parties to a civil action and their representatives conducted by amediator.
(2) "Mediation"means an informal process conducted by a mediator with the objective of helpingparties voluntarily settle their dispute.
(3) "Mediator"means a neutral person who acts to encourage and facilitate a resolution of apending civil action. A mediator does not make an award or render a judgment asto the merits of the action.
(c) Rules of procedure. The Supreme Court may adopt rules to implement this section.
(d) Statewideimplementation. Mediated settlement conferences authorized by this sectionshall be implemented in all judicial districts as soon as practicable, asdetermined by the Director of the Administrative Office of the Courts.
(e) Cases selected formediated settlement conferences. The senior resident superior court judge ofany participating district may order a mediated settlement conference for anysuperior court civil action pending in the district. The senior residentsuperior court judge may by local rule order all cases, not otherwise exemptedby the Supreme Court rule, to mediated settlement conference.
(f) Attendance ofparties. The parties to a superior court civil action in which a mediatedsettlement conference is ordered, their attorneys and other persons or entitieswith authority, by law or by contract, to settle the parties' claims shallattend the mediated settlement conference unless excused by rules of theSupreme Court or by order of the senior resident superior court judge. Nothingin this section shall require any party or other participant in the conferenceto make a settlement offer or demand which it deems is contrary to its bestinterests.
(g) Sanctions. Anyperson required to attend a mediated settlement conference or other settlementprocedure under this section who, without good cause, fails to attend or failsto pay any or all of the mediator's or other neutral's fee in compliance withthis section and the rules promulgated by the Supreme Court to implement thissection is subject to the contempt powers of the court and monetary sanctionsimposed by a resident or presiding superior court judge. The monetary sanctionsmay include the payment of fines, attorneys' fees, mediator and neutral fees,and the expenses and loss of earnings incurred by persons attending theprocedure. A party seeking sanctions against another party or person shall doso in a written motion stating the grounds for the motion and the reliefsought. The motion shall be served upon all parties and upon any person againstwhom the sanctions are being sought. The court may initiate sanctionproceedings upon its own motion by the entry of a show cause order. If thecourt imposes sanctions, it shall do so, after notice and a hearing, in awritten order, making findings of fact and conclusions of law. An orderimposing sanctions shall be reviewable upon appeal where the entire record assubmitted shall be reviewed to determine whether the order is supported bysubstantial evidence.
(h) Selection ofmediator. The parties to a superior court civil action in which a mediatedsettlement conference is to be held pursuant to this section shall have theright to designate a mediator. Upon failure of the parties to designate amediator within the time established by the rules of the Supreme Court, amediator shall be appointed by the senior resident superior court judge.
(i) Promotion of othersettlement procedures. Nothing in this section is intended to preclude theuse of other dispute resolution methods within the superior court. Parties to asuperior court civil action are encouraged to select other available disputeresolution methods. The senior resident superior court judge, at the request ofand with the consent of the parties, may order the parties to attend andparticipate in any other settlement procedure authorized by rules of theSupreme Court or by the local superior court rules, in lieu of attending amediated settlement conference. Neutral third parties acting pursuant to thissection shall be selected and compensated in accordance with such rules orpursuant to agreement of the parties. Nothing in this section shall prohibitthe parties from participating in, or the court from ordering, other disputeresolution procedures, including arbitration to the extent authorized underState or federal law.
(j) Immunity. Mediatorand other neutrals acting pursuant to this section shall have judicial immunityin the same manner and to the same extent as a judge of the General Court ofJustice, except that mediators and other neutrals may be disciplined inaccordance with enforcement procedures adopted by the Supreme Court pursuant toG.S. 7A‑38.2.
(k) Costs of mediatedsettlement conference. Costs of mediated settlement conferences shall beborne by the parties. Unless otherwise ordered by the court or agreed to by theparties, the mediator's fees shall be paid in equal shares by the parties. Forpurposes of this section, multiple parties shall be considered one party whenthey are represented by the same counsel. The rules adopted by the SupremeCourt implementing this section shall set out a method whereby parties found bythe court to be unable to pay the costs of the mediated settlement conferenceare afforded an opportunity to participate without cost. The rules adopted bythe Supreme Court shall set the fees to be paid a mediator appointed by a judgeupon the failure of the parties to designate a mediator.
(l) Inadmissibility ofnegotiations. Evidence of statements made and conduct occurring in a mediatedsettlement conference or other settlement proceeding conducted under thissection, whether attributable to a party, the mediator, other neutral, or aneutral observer present at the settlement proceeding, shall not be subject todiscovery and shall be inadmissible in any proceeding in the action or othercivil actions on the same claim, except:
(1) In proceedings forsanctions under this section;
(2) In proceedings toenforce or rescind a settlement of the action;
(3) In disciplinaryproceedings before the State Bar or any agency established to enforce standardsof conduct for mediators or other neutrals; or
(4) In proceedings toenforce laws concerning juvenile or elder abuse.
As used in this section, theterm "neutral observer" includes persons seeking mediatorcertification, persons studying dispute resolution processes, and personsacting as interpreters.
No settlement agreement toresolve any or all issues reached at the proceeding conducted under thissubsection or during its recesses shall be enforceable unless it has beenreduced to writing and signed by the parties. No evidence otherwisediscoverable shall be inadmissible merely because it is presented or discussedin a mediated settlement conference or other settlement proceeding.
No mediator, other neutral, orneutral observer present at a settlement proceeding shall be compelled totestify or produce evidence concerning statements made and conduct occurring inanticipation of, during, or as a follow‑up to a mediated settlementconference or other settlement proceeding pursuant to this section in any civilproceeding for any purpose, including proceedings to enforce or rescind asettlement of the action, except to attest to the signing of any agreements,and except proceedings for sanctions under this section, disciplinary hearingsbefore the State Bar or any agency established to enforce standards of conductfor mediators or other neutrals, and proceedings to enforce laws concerningjuvenile or elder abuse.
(m) Right to jury trial. Nothing in this section or the rules adopted by the Supreme Courtimplementing this section shall restrict the right to jury trial. (1995, c. 500, s. 1; 1999‑354,s. 5; 2005‑167, s. 1; 2008‑194, s. 8(a).)
§ 7A‑38.1. Mediatedsettlement conferences in superior court civil actions.
(a) Purpose. TheGeneral Assembly finds that a system of court‑ordered mediated settlementconferences should be established to facilitate the settlement of superiorcourt civil actions and to make civil litigation more economical, efficient,and satisfactory to litigants and the State. Therefore, this section is enactedto require parties to superior court civil actions and their representatives toattend a pretrial, mediated settlement conference conducted pursuant to thissection and pursuant to rules of the Supreme Court adopted to implement thissection.
(b) Definitions. Asused in this section:
(1) "Mediatedsettlement conference" means a pretrial, court‑ordered conference ofthe parties to a civil action and their representatives conducted by amediator.
(2) "Mediation"means an informal process conducted by a mediator with the objective of helpingparties voluntarily settle their dispute.
(3) "Mediator"means a neutral person who acts to encourage and facilitate a resolution of apending civil action. A mediator does not make an award or render a judgment asto the merits of the action.
(c) Rules of procedure. The Supreme Court may adopt rules to implement this section.
(d) Statewideimplementation. Mediated settlement conferences authorized by this sectionshall be implemented in all judicial districts as soon as practicable, asdetermined by the Director of the Administrative Office of the Courts.
(e) Cases selected formediated settlement conferences. The senior resident superior court judge ofany participating district may order a mediated settlement conference for anysuperior court civil action pending in the district. The senior residentsuperior court judge may by local rule order all cases, not otherwise exemptedby the Supreme Court rule, to mediated settlement conference.
(f) Attendance ofparties. The parties to a superior court civil action in which a mediatedsettlement conference is ordered, their attorneys and other persons or entitieswith authority, by law or by contract, to settle the parties' claims shallattend the mediated settlement conference unless excused by rules of theSupreme Court or by order of the senior resident superior court judge. Nothingin this section shall require any party or other participant in the conferenceto make a settlement offer or demand which it deems is contrary to its bestinterests.
(g) Sanctions. Anyperson required to attend a mediated settlement conference or other settlementprocedure under this section who, without good cause, fails to attend or failsto pay any or all of the mediator's or other neutral's fee in compliance withthis section and the rules promulgated by the Supreme Court to implement thissection is subject to the contempt powers of the court and monetary sanctionsimposed by a resident or presiding superior court judge. The monetary sanctionsmay include the payment of fines, attorneys' fees, mediator and neutral fees,and the expenses and loss of earnings incurred by persons attending theprocedure. A party seeking sanctions against another party or person shall doso in a written motion stating the grounds for the motion and the reliefsought. The motion shall be served upon all parties and upon any person againstwhom the sanctions are being sought. The court may initiate sanctionproceedings upon its own motion by the entry of a show cause order. If thecourt imposes sanctions, it shall do so, after notice and a hearing, in awritten order, making findings of fact and conclusions of law. An orderimposing sanctions shall be reviewable upon appeal where the entire record assubmitted shall be reviewed to determine whether the order is supported bysubstantial evidence.
(h) Selection ofmediator. The parties to a superior court civil action in which a mediatedsettlement conference is to be held pursuant to this section shall have theright to designate a mediator. Upon failure of the parties to designate amediator within the time established by the rules of the Supreme Court, amediator shall be appointed by the senior resident superior court judge.
(i) Promotion of othersettlement procedures. Nothing in this section is intended to preclude theuse of other dispute resolution methods within the superior court. Parties to asuperior court civil action are encouraged to select other available disputeresolution methods. The senior resident superior court judge, at the request ofand with the consent of the parties, may order the parties to attend andparticipate in any other settlement procedure authorized by rules of theSupreme Court or by the local superior court rules, in lieu of attending amediated settlement conference. Neutral third parties acting pursuant to thissection shall be selected and compensated in accordance with such rules orpursuant to agreement of the parties. Nothing in this section shall prohibitthe parties from participating in, or the court from ordering, other disputeresolution procedures, including arbitration to the extent authorized underState or federal law.
(j) Immunity. Mediatorand other neutrals acting pursuant to this section shall have judicial immunityin the same manner and to the same extent as a judge of the General Court ofJustice, except that mediators and other neutrals may be disciplined inaccordance with enforcement procedures adopted by the Supreme Court pursuant toG.S. 7A‑38.2.
(k) Costs of mediatedsettlement conference. Costs of mediated settlement conferences shall beborne by the parties. Unless otherwise ordered by the court or agreed to by theparties, the mediator's fees shall be paid in equal shares by the parties. Forpurposes of this section, multiple parties shall be considered one party whenthey are represented by the same counsel. The rules adopted by the SupremeCourt implementing this section shall set out a method whereby parties found bythe court to be unable to pay the costs of the mediated settlement conferenceare afforded an opportunity to participate without cost. The rules adopted bythe Supreme Court shall set the fees to be paid a mediator appointed by a judgeupon the failure of the parties to designate a mediator.
(l) Inadmissibility ofnegotiations. Evidence of statements made and conduct occurring in a mediatedsettlement conference or other settlement proceeding conducted under thissection, whether attributable to a party, the mediator, other neutral, or aneutral observer present at the settlement proceeding, shall not be subject todiscovery and shall be inadmissible in any proceeding in the action or othercivil actions on the same claim, except:
(1) In proceedings forsanctions under this section;
(2) In proceedings toenforce or rescind a settlement of the action;
(3) In disciplinaryproceedings before the State Bar or any agency established to enforce standardsof conduct for mediators or other neutrals; or
(4) In proceedings toenforce laws concerning juvenile or elder abuse.
As used in this section, theterm "neutral observer" includes persons seeking mediatorcertification, persons studying dispute resolution processes, and personsacting as interpreters.
No settlement agreement toresolve any or all issues reached at the proceeding conducted under thissubsection or during its recesses shall be enforceable unless it has beenreduced to writing and signed by the parties. No evidence otherwisediscoverable shall be inadmissible merely because it is presented or discussedin a mediated settlement conference or other settlement proceeding.
No mediator, other neutral, orneutral observer present at a settlement proceeding shall be compelled totestify or produce evidence concerning statements made and conduct occurring inanticipation of, during, or as a follow‑up to a mediated settlementconference or other settlement proceeding pursuant to this section in any civilproceeding for any purpose, including proceedings to enforce or rescind asettlement of the action, except to attest to the signing of any agreements,and except proceedings for sanctions under this section, disciplinary hearingsbefore the State Bar or any agency established to enforce standards of conductfor mediators or other neutrals, and proceedings to enforce laws concerningjuvenile or elder abuse.
(m) Right to jury trial. Nothing in this section or the rules adopted by the Supreme Courtimplementing this section shall restrict the right to jury trial. (1995, c. 500, s. 1; 1999‑354,s. 5; 2005‑167, s. 1; 2008‑194, s. 8(a).)
