§ 7A‑38.3B. Mediationin matters within the jurisdiction of the clerk of superior court.
(a) Purpose. TheGeneral Assembly finds that the clerk of superior court in the General Court ofJustice should have the discretion and authority to order that mediation beconducted in matters within the clerk's jurisdiction in order to facilitate amore economical, efficient, and satisfactory resolution of those matters.
(b) Enabling Authority. The clerk of superior court may order that mediation be conducted in anymatter in which the clerk has exclusive or original jurisdiction, except formatters under Chapters 45 and 48 of the General Statutes and except in mattersin which the jurisdiction of the clerk is ancillary. The Supreme Court mayadopt rules to implement this section. Such mediations shall be conductedpursuant to this section and the Supreme Court rules as adopted.
(c) Attendance. Inthose matters ordered to mediation pursuant to this section, the followingpersons or entities, along with their attorneys, may be ordered by the clerk toattend the mediation:
(1) Named parties.
(2) Interested persons,meaning persons or entities who have a right, interest, or claim in the matter;heirs or devisees in matters under Chapter 28A of the General Statutes, next ofkin under Chapter 35A of the General Statutes, and other persons or entities asthe clerk deems necessary for the adjudication of the matter. The meaning of"interested person" may vary according to the issues involved in thematter.
(3) Nonparty participants,meaning any other person or entity identified by the clerk as possessing usefulinformation about the matter and whose attendance would be beneficial to themediation.
(4) Fiduciaries, meaningpersons or entities who serve as fiduciaries, as that term is defined by G.S.36A‑22.1, of named parties, interested persons, or nonparty participants.
Any person or entity orderedto attend a mediation shall be notified of its date, time, and location andshall attend unless excused by rules of the Supreme Court or by order of theclerk. No one attending the mediation shall be required to make a settlementoffer or demand that it deems contrary to its best interests.
(d) Selection ofMediator. Persons ordered to mediation pursuant to this section have theright to designate a mediator in accordance with rules promulgated by theSupreme Court implementing this section. Upon failure of those persons to agreeupon a designation within the time established by rules of the Supreme Court, amediator certified by the Dispute Resolution Commission pursuant to those rulesshall be appointed by the clerk.
(e) Immunity. Mediatorsacting pursuant to this section shall have judicial immunity in the same mannerand to the same extent as a judge of the General Court of Justice, except thatmediators may be disciplined in accordance with procedures adopted by theSupreme Court pursuant to G.S. 7A‑38.2.
(f) Costs ofMediation. Costs of mediation under this section shall be borne by the namedparties, interested persons, and fiduciaries ordered to attend the mediation.The rules adopted by the Supreme Court implementing this section shall set outthe manner in which costs shall be paid and a method by which an opportunity toparticipate without cost shall be afforded to persons found by the clerk to beunable to pay their share of the costs of mediation. Costs may only be assessedagainst the estate of a decedent, the estate of an adjudicated or allegedincompetent, a trust corpus, or against a fiduciary upon the entry of a writtenorder making specific findings of fact justifying the taxing of costs.
(g) Inadmissibility ofNegotiations. Evidence of statements made or conduct occurring during amediation conducted pursuant to this section, whether attributable to any participant,mediator, expert, or neutral observer, shall not be subject to discovery andshall be inadmissible in any proceeding in the matter or other civil actions onthe same claim, except in:
(1) Proceedings forsanctions pursuant to this section;
(2) Proceedings toenforce or rescind a written and signed settlement agreement;
(3) Incompetency,guardianship, or estate proceedings in which a mediated agreement is presentedto the clerk;
(4) Disciplinaryproceedings before the North Carolina State Bar or any agency established toenforce standards of conduct for mediators or other neutrals; or
(5) Proceedings forabuse, neglect, or dependency of a juvenile, or for abuse, neglect, orexploitation of an adult, for which there is a duty to report under G.S. 7B‑301and Article 6 of Chapter 108A of the General Statutes, respectively.
No evidence otherwisediscoverable shall be inadmissible merely because it is presented or discussedin mediation.
As used in this section, theterm "neutral observer" includes persons seeking mediatorcertification, persons studying dispute resolution processes, and personsacting as interpreters.
(h) Testimony. Nomediator or neutral observer shall be compelled to testify or produce evidenceconcerning statements made and conduct occurring in anticipation of, during, oras a follow‑up to the mediation in any civil proceeding for any purpose,including proceedings to enforce or rescind a settlement of the matter exceptto attest to the signing of any agreements reached in mediation, and except in:
(1) Proceedings forsanctions pursuant to this section;
(2) Disciplinaryproceedings before the North Carolina State Bar or any agency established toenforce standards of conduct for mediators or other neutrals; or
(3) Proceedings forabuse, neglect, or dependency of a juvenile, or for abuse, neglect, orexploitation of an adult, for which there is a duty to report under G.S. 7B‑301and Article 6 of Chapter 108A of the General Statutes, respectively.
(i) Agreements. Inmatters before the clerk in which agreements are reached in a mediationconducted pursuant to this section, or during one of its recesses, thoseagreements shall be treated as follows:
(1) Where as a matter oflaw, a matter may be resolved by agreement of the parties, a settlement isenforceable only if it has been reduced to writing and signed by the parties.
(2) In all other mattersbefore the clerk, including guardianship and estate matters, all agreementsshall be delivered to the clerk for consideration in deciding the matter.
(j) Sanctions. Anyperson ordered to attend a mediation conducted pursuant to this section andrules of the Supreme Court who, without good cause, fails to attend themediation or fails to pay any or all of the mediator'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 clerk and monetary sanctions.The monetary sanctions may include the payment of fines, attorneys' fees,mediator fees, and the expenses and loss of earnings incurred by personsattending the mediation. If the clerk imposes sanctions, the clerk shall do so,after notice and a hearing, in a written order, making findings of fact andconclusions of law. An order imposing sanctions is reviewable by the superiorcourt in accordance with G.S. 1‑301.2 and G.S. 1‑301.3, asapplicable, and thereafter by the appellate courts in accordance with G.S. 7A‑38.1(g).
(k) Authority toSupplement Procedural Details. The clerk of superior court shall make allthose orders just and necessary to safeguard the interests of all persons andmay supplement all necessary procedural details not inconsistent with rulesadopted by the Supreme Court implementing this section. (2005‑67, s. 1; 2008‑194,s. 8(b).)
§ 7A‑38.3B. Mediationin matters within the jurisdiction of the clerk of superior court.
(a) Purpose. TheGeneral Assembly finds that the clerk of superior court in the General Court ofJustice should have the discretion and authority to order that mediation beconducted in matters within the clerk's jurisdiction in order to facilitate amore economical, efficient, and satisfactory resolution of those matters.
(b) Enabling Authority. The clerk of superior court may order that mediation be conducted in anymatter in which the clerk has exclusive or original jurisdiction, except formatters under Chapters 45 and 48 of the General Statutes and except in mattersin which the jurisdiction of the clerk is ancillary. The Supreme Court mayadopt rules to implement this section. Such mediations shall be conductedpursuant to this section and the Supreme Court rules as adopted.
(c) Attendance. Inthose matters ordered to mediation pursuant to this section, the followingpersons or entities, along with their attorneys, may be ordered by the clerk toattend the mediation:
(1) Named parties.
(2) Interested persons,meaning persons or entities who have a right, interest, or claim in the matter;heirs or devisees in matters under Chapter 28A of the General Statutes, next ofkin under Chapter 35A of the General Statutes, and other persons or entities asthe clerk deems necessary for the adjudication of the matter. The meaning of"interested person" may vary according to the issues involved in thematter.
(3) Nonparty participants,meaning any other person or entity identified by the clerk as possessing usefulinformation about the matter and whose attendance would be beneficial to themediation.
(4) Fiduciaries, meaningpersons or entities who serve as fiduciaries, as that term is defined by G.S.36A‑22.1, of named parties, interested persons, or nonparty participants.
Any person or entity orderedto attend a mediation shall be notified of its date, time, and location andshall attend unless excused by rules of the Supreme Court or by order of theclerk. No one attending the mediation shall be required to make a settlementoffer or demand that it deems contrary to its best interests.
(d) Selection ofMediator. Persons ordered to mediation pursuant to this section have theright to designate a mediator in accordance with rules promulgated by theSupreme Court implementing this section. Upon failure of those persons to agreeupon a designation within the time established by rules of the Supreme Court, amediator certified by the Dispute Resolution Commission pursuant to those rulesshall be appointed by the clerk.
(e) Immunity. Mediatorsacting pursuant to this section shall have judicial immunity in the same mannerand to the same extent as a judge of the General Court of Justice, except thatmediators may be disciplined in accordance with procedures adopted by theSupreme Court pursuant to G.S. 7A‑38.2.
(f) Costs ofMediation. Costs of mediation under this section shall be borne by the namedparties, interested persons, and fiduciaries ordered to attend the mediation.The rules adopted by the Supreme Court implementing this section shall set outthe manner in which costs shall be paid and a method by which an opportunity toparticipate without cost shall be afforded to persons found by the clerk to beunable to pay their share of the costs of mediation. Costs may only be assessedagainst the estate of a decedent, the estate of an adjudicated or allegedincompetent, a trust corpus, or against a fiduciary upon the entry of a writtenorder making specific findings of fact justifying the taxing of costs.
(g) Inadmissibility ofNegotiations. Evidence of statements made or conduct occurring during amediation conducted pursuant to this section, whether attributable to any participant,mediator, expert, or neutral observer, shall not be subject to discovery andshall be inadmissible in any proceeding in the matter or other civil actions onthe same claim, except in:
(1) Proceedings forsanctions pursuant to this section;
(2) Proceedings toenforce or rescind a written and signed settlement agreement;
(3) Incompetency,guardianship, or estate proceedings in which a mediated agreement is presentedto the clerk;
(4) Disciplinaryproceedings before the North Carolina State Bar or any agency established toenforce standards of conduct for mediators or other neutrals; or
(5) Proceedings forabuse, neglect, or dependency of a juvenile, or for abuse, neglect, orexploitation of an adult, for which there is a duty to report under G.S. 7B‑301and Article 6 of Chapter 108A of the General Statutes, respectively.
No evidence otherwisediscoverable shall be inadmissible merely because it is presented or discussedin mediation.
As used in this section, theterm "neutral observer" includes persons seeking mediatorcertification, persons studying dispute resolution processes, and personsacting as interpreters.
(h) Testimony. Nomediator or neutral observer shall be compelled to testify or produce evidenceconcerning statements made and conduct occurring in anticipation of, during, oras a follow‑up to the mediation in any civil proceeding for any purpose,including proceedings to enforce or rescind a settlement of the matter exceptto attest to the signing of any agreements reached in mediation, and except in:
(1) Proceedings forsanctions pursuant to this section;
(2) Disciplinaryproceedings before the North Carolina State Bar or any agency established toenforce standards of conduct for mediators or other neutrals; or
(3) Proceedings forabuse, neglect, or dependency of a juvenile, or for abuse, neglect, orexploitation of an adult, for which there is a duty to report under G.S. 7B‑301and Article 6 of Chapter 108A of the General Statutes, respectively.
(i) Agreements. Inmatters before the clerk in which agreements are reached in a mediationconducted pursuant to this section, or during one of its recesses, thoseagreements shall be treated as follows:
(1) Where as a matter oflaw, a matter may be resolved by agreement of the parties, a settlement isenforceable only if it has been reduced to writing and signed by the parties.
(2) In all other mattersbefore the clerk, including guardianship and estate matters, all agreementsshall be delivered to the clerk for consideration in deciding the matter.
(j) Sanctions. Anyperson ordered to attend a mediation conducted pursuant to this section andrules of the Supreme Court who, without good cause, fails to attend themediation or fails to pay any or all of the mediator'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 clerk and monetary sanctions.The monetary sanctions may include the payment of fines, attorneys' fees,mediator fees, and the expenses and loss of earnings incurred by personsattending the mediation. If the clerk imposes sanctions, the clerk shall do so,after notice and a hearing, in a written order, making findings of fact andconclusions of law. An order imposing sanctions is reviewable by the superiorcourt in accordance with G.S. 1‑301.2 and G.S. 1‑301.3, asapplicable, and thereafter by the appellate courts in accordance with G.S. 7A‑38.1(g).
(k) Authority toSupplement Procedural Details. The clerk of superior court shall make allthose orders just and necessary to safeguard the interests of all persons andmay supplement all necessary procedural details not inconsistent with rulesadopted by the Supreme Court implementing this section. (2005‑67, s. 1; 2008‑194,s. 8(b).)
§ 7A‑38.3B. Mediationin matters within the jurisdiction of the clerk of superior court.
(a) Purpose. TheGeneral Assembly finds that the clerk of superior court in the General Court ofJustice should have the discretion and authority to order that mediation beconducted in matters within the clerk's jurisdiction in order to facilitate amore economical, efficient, and satisfactory resolution of those matters.
(b) Enabling Authority. The clerk of superior court may order that mediation be conducted in anymatter in which the clerk has exclusive or original jurisdiction, except formatters under Chapters 45 and 48 of the General Statutes and except in mattersin which the jurisdiction of the clerk is ancillary. The Supreme Court mayadopt rules to implement this section. Such mediations shall be conductedpursuant to this section and the Supreme Court rules as adopted.
(c) Attendance. Inthose matters ordered to mediation pursuant to this section, the followingpersons or entities, along with their attorneys, may be ordered by the clerk toattend the mediation:
(1) Named parties.
(2) Interested persons,meaning persons or entities who have a right, interest, or claim in the matter;heirs or devisees in matters under Chapter 28A of the General Statutes, next ofkin under Chapter 35A of the General Statutes, and other persons or entities asthe clerk deems necessary for the adjudication of the matter. The meaning of"interested person" may vary according to the issues involved in thematter.
(3) Nonparty participants,meaning any other person or entity identified by the clerk as possessing usefulinformation about the matter and whose attendance would be beneficial to themediation.
(4) Fiduciaries, meaningpersons or entities who serve as fiduciaries, as that term is defined by G.S.36A‑22.1, of named parties, interested persons, or nonparty participants.
Any person or entity orderedto attend a mediation shall be notified of its date, time, and location andshall attend unless excused by rules of the Supreme Court or by order of theclerk. No one attending the mediation shall be required to make a settlementoffer or demand that it deems contrary to its best interests.
(d) Selection ofMediator. Persons ordered to mediation pursuant to this section have theright to designate a mediator in accordance with rules promulgated by theSupreme Court implementing this section. Upon failure of those persons to agreeupon a designation within the time established by rules of the Supreme Court, amediator certified by the Dispute Resolution Commission pursuant to those rulesshall be appointed by the clerk.
(e) Immunity. Mediatorsacting pursuant to this section shall have judicial immunity in the same mannerand to the same extent as a judge of the General Court of Justice, except thatmediators may be disciplined in accordance with procedures adopted by theSupreme Court pursuant to G.S. 7A‑38.2.
(f) Costs ofMediation. Costs of mediation under this section shall be borne by the namedparties, interested persons, and fiduciaries ordered to attend the mediation.The rules adopted by the Supreme Court implementing this section shall set outthe manner in which costs shall be paid and a method by which an opportunity toparticipate without cost shall be afforded to persons found by the clerk to beunable to pay their share of the costs of mediation. Costs may only be assessedagainst the estate of a decedent, the estate of an adjudicated or allegedincompetent, a trust corpus, or against a fiduciary upon the entry of a writtenorder making specific findings of fact justifying the taxing of costs.
(g) Inadmissibility ofNegotiations. Evidence of statements made or conduct occurring during amediation conducted pursuant to this section, whether attributable to any participant,mediator, expert, or neutral observer, shall not be subject to discovery andshall be inadmissible in any proceeding in the matter or other civil actions onthe same claim, except in:
(1) Proceedings forsanctions pursuant to this section;
(2) Proceedings toenforce or rescind a written and signed settlement agreement;
(3) Incompetency,guardianship, or estate proceedings in which a mediated agreement is presentedto the clerk;
(4) Disciplinaryproceedings before the North Carolina State Bar or any agency established toenforce standards of conduct for mediators or other neutrals; or
(5) Proceedings forabuse, neglect, or dependency of a juvenile, or for abuse, neglect, orexploitation of an adult, for which there is a duty to report under G.S. 7B‑301and Article 6 of Chapter 108A of the General Statutes, respectively.
No evidence otherwisediscoverable shall be inadmissible merely because it is presented or discussedin mediation.
As used in this section, theterm "neutral observer" includes persons seeking mediatorcertification, persons studying dispute resolution processes, and personsacting as interpreters.
(h) Testimony. Nomediator or neutral observer shall be compelled to testify or produce evidenceconcerning statements made and conduct occurring in anticipation of, during, oras a follow‑up to the mediation in any civil proceeding for any purpose,including proceedings to enforce or rescind a settlement of the matter exceptto attest to the signing of any agreements reached in mediation, and except in:
(1) Proceedings forsanctions pursuant to this section;
(2) Disciplinaryproceedings before the North Carolina State Bar or any agency established toenforce standards of conduct for mediators or other neutrals; or
(3) Proceedings forabuse, neglect, or dependency of a juvenile, or for abuse, neglect, orexploitation of an adult, for which there is a duty to report under G.S. 7B‑301and Article 6 of Chapter 108A of the General Statutes, respectively.
(i) Agreements. Inmatters before the clerk in which agreements are reached in a mediationconducted pursuant to this section, or during one of its recesses, thoseagreements shall be treated as follows:
(1) Where as a matter oflaw, a matter may be resolved by agreement of the parties, a settlement isenforceable only if it has been reduced to writing and signed by the parties.
(2) In all other mattersbefore the clerk, including guardianship and estate matters, all agreementsshall be delivered to the clerk for consideration in deciding the matter.
(j) Sanctions. Anyperson ordered to attend a mediation conducted pursuant to this section andrules of the Supreme Court who, without good cause, fails to attend themediation or fails to pay any or all of the mediator'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 clerk and monetary sanctions.The monetary sanctions may include the payment of fines, attorneys' fees,mediator fees, and the expenses and loss of earnings incurred by personsattending the mediation. If the clerk imposes sanctions, the clerk shall do so,after notice and a hearing, in a written order, making findings of fact andconclusions of law. An order imposing sanctions is reviewable by the superiorcourt in accordance with G.S. 1‑301.2 and G.S. 1‑301.3, asapplicable, and thereafter by the appellate courts in accordance with G.S. 7A‑38.1(g).
(k) Authority toSupplement Procedural Details. The clerk of superior court shall make allthose orders just and necessary to safeguard the interests of all persons andmay supplement all necessary procedural details not inconsistent with rulesadopted by the Supreme Court implementing this section. (2005‑67, s. 1; 2008‑194,s. 8(b).)
