SUBCHAPTER 10G – NORTH CAROLINA INDUSTRIAL COMMISSION RULES
FOR MEDIATED SETTLEMENT AND NEUTRAL EVALUATION CONFERENCES
SECTION .0100 – MEDIATION AND SETTLEMENT
04 NCAC 10G .0101 ORDER
FOR MEDIATED SETTLEMENT CONFERENCE
(a) Mediation Upon Agreement of the Parties. If the
parties to a workers' compensation claim or state tort claim agree to mediate
the claim, the parties may schedule and proceed with mediation on their own, or
the parties may submit a request for a mediation order pursuant to Paragraph
(d) of this Rule. No order from the Commission is necessary if the parties
mutually agree to mediate the claim, but the mediator shall file a report of
mediation with the Commission as required by Paragraph (g) of Rule .0106 of
this Subchapter. If the parties proceed with mediation in the absence of an
order from the Commission and the Commission thereafter enters a mediation
order, the parties shall notify the Commission that the parties have agreed
upon the selection of a mediator or, if the mediated settlement conference has
been completed, that the parties request to be excused from any further
mediation obligations pursuant to Paragraph (f) of this Rule.
(b) Referral Upon Receipt of a Form 33 Request that
Claim be Assigned for Hearing. In any case in which the Commission
receives a Form 33 Request that Claim be Assigned for Hearing, the
Commission shall order the case to a mediated settlement conference unless
doing so would be contrary to the interests of justice.
(c) By Order of the Commission. Commissioners, Deputy
Commissioners, the Commission's Dispute Resolution Coordinator, and such other
employees as the Commission Chair designates may, by written order, require the
parties and their representatives to attend a mediated settlement conference
concerning a dispute within the workers' compensation and state tort claim
jurisdiction of the Commission. Requests to dispense with or defer a mediated
settlement conference shall be addressed to the Dispute Resolution
Coordinator. Unless the context otherwise requires, references to the "Commission"
in the rules in this Subchapter shall mean the Dispute Resolution Coordinator.
(d) Mediation Upon Request of a Party. If a case is not
otherwise ordered to a mediated settlement conference, a party may move the
Commission to order a conference. The motion shall be served on non-moving
parties and shall state the reasons why the order should be entered. Responses
may be filed in writing with the Commission within 10 days after the date of
the service of the motion. Any motion for a mediation order shall be submitted
on a form provided by the Commission.
(e) Timing of the Order. The order requiring mediation may
be issued whenever it appears that the parties have a dispute arising under the
Workers' Compensation Act or the Tort Claims Act.
(f) Motion to Dispense with or Defer Mediated Settlement
Conference. Mediation may be dispensed with by the Commission in the interests
of justice or judicial economy. As used in this Rule, the term "dispensed
with" means setting aside or rescinding the mediation order(s) entered in
the case, or excusing the parties from their obligations under the applicable
order(s) or the Rules in this Subchapter. Mediation may not be dispensed with
by the parties or the mediator unless the parties have agreed, subject to
Commission approval, on a full and complete resolution of all disputed issues
set forth in the request for hearing filed in the case, and the parties have
given notice of the settlement to the Dispute Resolution Coordinator. Within
55 days of the filing of a Form 33 Request that Claim be Assigned for
Hearing, or otherwise within the deadline set forth in the Commission's
order entered pursuant to Paragraph (c) or Paragraph (d) of this Rule, a party
may move to dispense with or defer the mediated settlement conference. The
motion shall state the reasons the relief is sought and must be received by the
Dispute Resolution Coordinator within the applicable deadline.
(g) Exemption from Mediated Settlement Conference. The
State shall not be compelled to participate in a mediation or neutral
evaluation procedure with a prison inmate.
(h) Motion to Authorize the Use of Neutral Evaluation
Procedures. The parties may move the Commission to authorize the use of a
neutral evaluation procedure contained in Rule .0109 of this Subchapter in lieu
of a mediated settlement conference. The motion shall be filed on a form
provided by the Commission within 55 days of the filing of a Form 33 Request
that Claim be Assigned for Hearing, or otherwise within the deadline set
forth in the Commission's order entered pursuant to Paragraph (c) or Paragraph
(d) of this Rule, and shall state:
(1) that all parties consent to the motion;
(2) that the neutral evaluator and the parties
have agreed upon the selection and all terms of compensation of the neutral
selected; and
(3) the name, address, and telephone number of
the neutral evaluator selected by the parties.
(i) If the parties are unable to agree to the matters
listed in Paragraph (h), the Commission shall deny the motion for authorization
to use a neutral evaluation procedure, and the parties shall attend the
mediated settlement conference as originally ordered by the Commission. If the
parties are able to agree on the matters listed in Paragraph (h), the
Commission shall order the use of a neutral evaluation proceeding; provided,
however, that the Commission shall not order the use of a neutral evaluation
proceeding in any case in which the plaintiff is not represented by counsel.
(j) Cases Involving Plaintiffs Not Represented by Counsel.
Unless an unrepresented plaintiff requests that the plaintiff's case be
mediated, the Commission shall enter an order dispensing with mediation.
History Note: Authority G.S. 97-80(a),(c); 143-296;
143-300; Rule 1 of Rules Implementing Statewide Mediated Settlement Conference
in Superior Court Civil Actions;
Eff. January 16, 1996;
Amended Eff. October 1, 1998;
Recodified from 04 NCAC 10A .0616;
Amended Eff. July 1, 2014; January 1, 2011; June 1, 2000.
04 NCAC 10G .0102 SELECTION OF
MEDIATOR
(a) By Agreement of Parties. The parties in a workers'
compensation case or a state tort claims case may, by agreement, select a
mediator certified by the North Carolina Dispute Resolution Commission within
55 days of the filing of a Form 33 Request that Claim be Assigned for
Hearing, or otherwise within the deadline set forth in the Commission's
order entered pursuant to Paragraph (c) or Paragraph (d) of Rule .0101 of this
Subchapter, subject to the Commission's authority to remove the mediator
selected by the parties due to a conflict of interest. The stipulation may be
transmitted by either party, shall be dated as of the date it is transmitted to
the Commission, and must be received by the Dispute Resolution Coordinator
within 55 days of the filing of a Form 33 Request that Claim be Assigned for
Hearing, or otherwise within the deadline set forth in the Commission's order
entered pursuant to Paragraph (c) or Paragraph (d) of Rule .0101 of this
Subchapter. The scheduled date of the mediated settlement conference shall be
within 120 days of the mediation order. The stipulation shall include the date
of the scheduled mediation, the name, address and telephone number of the
mediator selected by agreement, and shall confirm that the mediator is
certified by the Dispute Resolution Commission. The applicable deadline shall
be extended by the Dispute Resolution Coordinator upon request of the parties.
Any party may waive the applicable deadline for the selection and suggestion of
mediators and request that the Commission appoint a mediator.
(b) Appointment by Commission. If the parties fail to
notify the Commission of the parties' selection of a mediator within 55 days of
the filing of a Form 33 Request that Claim be Assigned for Hearing, or
otherwise within the deadline set forth in the Commission's order entered
pursuant to Paragraph (c) or Paragraph (d) of Rule .0101 of this Subchapter,
the Commission shall appoint a mediator to hold a mediated settlement
conference in the case. The Commission shall appoint a mediator who meets the requirements
in Paragraph (b) of Rule .0108 of this Subchapter. In the absence of any
suggestions by the parties with regard to the appointment of mediators, the
Commission shall select the mediator for the case by random order, unless the
Commission determines that, because of unusual circumstances, a particular
mediator should be appointed in a particular case.
(c) Disqualification of Mediator. Any party may move the
Commission for an order disqualifying a mediator. For good cause, such order
shall be entered. If the mediator is disqualified, an order shall be entered
for the selection of a replacement mediator pursuant to this Rule. Nothing in
this Paragraph shall preclude mediators from disqualifying themselves.
History Note: Authority G.S. 97-80(a),(c); 143-296;
143-300; Rule 2 of Rules Implementing Statewide Mediated Settlement Conference
in Superior Court Civil Actions;
Eff. January 16, 1996;
Amended Eff. October 1, 1998;
Recodified from 04 NCAC 10A .0616;
Amended Eff. July 1, 2014; January 1, 2011; June 1, 2000.
04 NCAC 10G .0103 THE MEDIATED SETTLEMENT CONFERENCE
(a) Where Conference Is to Be Held. Unless all parties in
a workers' compensation case or a state tort claims case and the mediator
otherwise agree, the mediated settlement conference shall be held in the county
where the case is pending. The mediator shall reserve a place and make
arrangements for the conference and give notice to all attorneys and
unrepresented parties of the time and location of the conference.
(b) When Conference Is to Be Held. The conference shall be
held at the time agreed to by the parties and the mediator, or if the parties
do not agree, at the time specified by the mediator.
(c) Request to Extend Date of Completion. In the interests
of justice, the Commission may extend the deadline for completion of the
conference upon the Commission's own motion, a motion or stipulation of the
parties or the suggestion of the mediator.
(d) Recesses. The mediator may recess the conference at
any time and may set times for reconvening. If the time for reconvening is set
before the conference is recessed, no further notification is required for
persons present at the recessed conference.
(e) The Mediated Settlement Conference Is Not to Delay
Other Proceedings. A mediated settlement conference is not cause for delay of
other proceedings in the case, including the completion of discovery and the
filing or hearing of motions, unless ordered by the Commission in the interests
of justice. No depositions shall be taken following a Commission order
requiring mediation until mediation is concluded, except by agreement of the
parties or order of the Commission in the interest of justice.
(f) Inadmissibility of Negotiations by Parties and
Attorneys. Evidence of statements made and conduct occurring in a mediated
settlement conference or other settlement proceeding conducted pursuant to the
Rules in this Subchapter, whether attributable to a party, the mediator, other
neutral, or a neutral observer present at the settlement conference or
proceeding, are not subject to discovery and shall be inadmissible in any
proceeding in the action or other actions on the same claim, except:
(1) proceedings for sanctions for violations of
the attendance or payment of mediation fee provisions contained in Rule .0104
and Rule.0107 of this Subchapter;
(2) proceedings to enforce or rescind a
settlement of the action;
(3) disciplinary proceedings before the North
Carolina State Bar or any agency enforcing standards of conduct for mediators
or other neutrals, including the Commission; or
(4) proceedings to enforce laws concerning
juvenile or elder abuse.
(g) No settlement agreement to resolve any or all issues
reached at the settlement conference or proceeding conducted under this
Subchapter or reached during a recess in the conference or proceeding shall be
enforceable unless the settlement agreement has been reduced to writing and
signed by the parties. No evidence otherwise discoverable shall be
inadmissible solely because the evidence is presented or discussed in a
mediated settlement conference or other settlement proceeding.
(h) Inadmissibility of Mediator Testimony. No mediator,
other neutral, or neutral observer present at a settlement proceeding shall be
compelled to testify or produce evidence concerning statements made and conduct
occurring in anticipation of, during, or as a follow-up to a mediated
settlement conference or other settlement proceeding conducted pursuant to the
Rules in this Subchapter in any Commission case or civil proceeding for any
purpose, including proceedings to enforce or rescind a settlement of the
action, except:
(1) to attest to the signing of any settlement
agreements;
(2) proceedings for sanctions for violations of
the attendance or payment of mediation fee provisions contained in Rule .0104
and Rule .0107 of this Subchapter;
(3) disciplinary proceedings before the North
Carolina State Bar or any agency enforcing standards of conduct for mediators
or other neutrals, including the Commission; and
(4) proceedings to enforce laws concerning
juvenile or elder abuse.
(i) As used in this Subchapter, the term "neutral
observer" includes persons seeking mediator certification, persons
studying dispute resolution processes, and persons acting as interpreters.
History Note: Authority G.S. 97-80(a),(c); 143-296;
143-300; Rule 3 of Rules Implementing Statewide Mediated Settlement Conference
in Superior Court Civil Actions;
Eff. January 16, 1996;
Amended Eff. October 1, 1998
Recodified from 04 NCAC 10A .0616;
Amended Eff. July 1, 2014; January 1, 2011; June 1, 2000.
04 NCAC 10G .0104 DUTIES
OF PARTIES, REPRESENTATIVES, AND ATTORNEYS
(a) Attendance. The following persons shall physically
attend the mediated settlement conference:
(1) all individual parties;
(2) in a workers' compensation case, a
representative of the employer at the time of injury if:
(A) the employer, instead of or in addition to the
insurance company or administrator, has decision-making authority with respect
to settlement;
(B) the employer is offering the claimant employment and
the suitability of that employment is in issue;
(C) the employer and the claimant have agreed to
simultaneously mediate non-compensation issues arising from the injury; or
(D) the Commission orders the employer representative to
attend the conference if the representative's physical attendance is necessary
to resolve matters in dispute in the subject action;
(3) an officer, employee or agent of any party
that is not a natural person or a governmental entity who is not such party's
outside counsel and who has the authority to decide on behalf of such party
whether and on what terms to settle the action;
(4) in a workers' compensation case, an
employee or agent of any party that is a governmental entity who is not such
party's outside counsel or Attorney General's counsel responsible for the case
and who has the authority to decide on behalf of such party and on what terms
to settle the action.
(5) when the governing law prescribes that the
terms of a proposed settlement may be approved only by a Board, an employee or
agent who is not such party's outside counsel or Attorney General's counsel
responsible for the case and who has the authority to negotiate on behalf of
and to make a recommendation to the Board. Because G.S. 143-295 provides the
Attorney General with settlement authority on behalf of governmental entities
and agencies for state tort claims, an employee or agent of the named
governmental entity or agency is not required to attend the mediated settlement
conference; the Attorney General shall attempt to make an employee or agent of
the named governmental entity or agency in a state tort claim available via
telecommunication, and mediation shall not be delayed due to the absence or
unavailability of the employee or agent of the named governmental entity or
agency.
(6) The counsels of record; provided, that
appearance by counsel does not dispense with or waive the required attendance
of the parties listed in Subparagraphs (1) through (4);
(7) a representative of each defendant's
primary workers' compensation or liability insurance carrier or self-insured that
may be obligated to pay all or part of any claim presented in the action. Each
carrier or self-insured shall be represented at the conference by an officer,
employee or agent who is not such party's outside counsel and who has the
authority to decide on behalf of the carrier or self-insured whether and on
what terms to settle the action, or who has been authorized to negotiate on
behalf of such carrier or self-insured and can communicate during the
conference with persons who have such decision making authority; and
(8) by order of the Commission, other
representatives of parties, employers or carriers, who may be obligated to pay
all or part of any claim presented in the action and who are not required to
attend the conference pursuant to Subparagraphs (1) through (6) of this Rule,
if the Commission determines that the representative's attendance is necessary
for purposes of resolving the matters in dispute in the subject action. Any
employer or carrier who may be obligated to pay all or part of any claim
presented in the action and who is not required to physically attend the
mediated settlement conference pursuant to Subparagraphs (1) through (6) of
this Rule or by Commission orders, may attend the conference if the employer or
carrier elects to attend. If, during the conference, the mediator determines
that the physical attendance of one or more additional persons is necessary to
resolve the matters in dispute in the subject action, the mediator may recess
the conference and reconvene the conference at a later date and time to allow
the additional person or persons to physically attend.
(b) Any party or person required to attend a mediated
settlement conference shall physically attend the conference until an agreement
is reduced to writing and signed as provided in Paragraph (f) of this Rule, or
until an impasse has been declared. Any such party or person may have the
physical attendance requirement excused or modified by agreement of all parties
and persons required to attend the conference and the mediator, or by order of
the Commission in the interests of justice upon motion of a party and notice to
all parties and persons required to attend the conference.
(c) In appropriate cases the Commission or the mediator,
with the consent of the parties, may allow a party or insurance carrier
representative who is required to physically attend a mediated settlement
conference under this Rule to attend the conference by telephone, conference
call, speaker telephone or videoconferencing; provided that, the party or
representative so attending shall bear all costs of such telephone calls or
videoconferencing, the mediator may communicate directly with the insurance
representative with regard to matters discussed in mediation, and the mediator
may set a subsequent mediated settlement conference at which all parties and
representatives shall physically attend. The failure to properly appear by telephone
or videoconferencing in accordance with this Paragraph shall subject the
responsible party(ies) or representative(s) to sanctions pursuant to Rule .0105
of this Subchapter.
(d) Notice of Mediation Order. Within seven days after the
receipt of an order for a mediated settlement conference, the carrier or
self-insured named in the order shall provide a copy of the order to the
employer and all other carriers who may be obligated to pay all or part of any
claim presented in the workers' compensation case or any related third-party
tortfeasor claims, and shall provide the mediator and the other parties in the
action with the name, address and telephone number of all such carriers.
(e) Finalizing Agreement. If an agreement is reached in
the mediated settlement conference, the parties shall reduce the agreement to
writing, specifying all terms of the agreement that bear on the resolution of
the dispute before the Commission, and shall sign the agreement along with
their counsel. The parties may use IC Form MSC8, Mediated
Settlement Agreement, or MSC9, Mediated
Settlement Agreement – Alternative Form, for this purpose.
Execution by counsel of a mediated settlement agreement for an employer or
carrier who does not physically attend the mediated settlement conference shall
be deemed to be in compliance with this Rule and 04 NCAC 10A .0502. By
stipulation of the parties and at the parties' expense, the agreement may be
electronically or stenographically recorded. All agreements for payment of
compensation shall be submitted for Commission approval in accordance with 04 NCAC
10A .0501 and .0502.
(f) Payment of Mediator's Fee. The mediator's fee shall be
paid at the conclusion of the mediated settlement conference, unless otherwise
provided by Rule .0107 of this Subchapter, or by agreement with the mediator.
(g) Related Cases. Upon application by any party or person
and upon notice to all parties, the Commission may, in the interests of justice,
order an attorney of record, party or representative of an insurance carrier
who may be liable for all or any part of a claim pending in a Commission case
to attend a mediated settlement conference that may be convened in another
pending case, regardless of the forum in which the other case may be pending,
provided that all parties in the other pending case consent to the attendance
ordered pursuant to this Paragraph. Any disputed issues concerning such an
order shall be addressed to the Commission's Dispute Resolution Coordinator.
Unless otherwise ordered, any attorney, party or carrier representative who
attends a mediated settlement conference pursuant to this Paragraph shall not
be required to pay any of the mediation fees or costs related to that conference.
Requests that a party, attorney of record, or insurance carrier representative
in a related case attend a mediated settlement conference in a Commission case
shall be addressed to the court or agency in which the related case is pending,
provided that all parties in the Commission case consent to the requested
attendance.
History Note: Authority G.S. 97-80(a),(c); 143-295;
143-296; 143-300; Rule 4 of Rules Implementing Statewide Mediated Settlement
Conference in Superior Court Civil Actions;
Eff. January 16, 1996;
Amended Eff. October 1, 1998;
Recodified from 04 NCAC 10A .0616;
Amended Eff. July 1, 2014; January 1, 2011; June 1, 2000.
04 NCAC 10G .0104A FOREIGN LANGUAGE INTERPRETERS
(a) Any party who is unable to speak or understand English
shall so notify the Commission, the mediator, and the opposing party or parties
in writing, not less than 21 days prior to the date of the mediated settlement
conference. The notice shall contain the party's primary language and how the
party plans to communicate in English during the mediation.
(b) The party requesting the assistance of a qualified
foreign language interpreter shall bear the costs.
(c) If the certified mediator, in his or her discretion,
notifies the parties of the need for a qualified foreign language interpreter,
the parties shall retain a disinterested interpreter who possesses the
qualifications listed in Paragraph (d) of this Rule to assist at the mediated
settlement conference. The fee of the foreign language interpreter and any
postponement fees necessitated by the need for a qualified foreign language
interpreter shall be shared by the parties unless the parties agree otherwise.
(d) A qualified foreign language interpreter shall possess
sufficient experience and education, or a combination of experience and
education, in speaking and understanding English and the foreign language to be
interpreted, to qualify as an expert witness pursuant to G.S. 8C-1, Rule 702.
(e) Qualified foreign language interpreters shall abide by
the Code of Conduct and Ethics of Foreign Language Interpreters and
Translators, contained in Part 4 of Policies and Best Practices for the Use
of Foreign Language Interpreting and Translating Services in the North Carolina
Court System and promulgated by the North Carolina Administrative Office of
the Courts, and shall interpret, as word for word as is practicable, without
editing, commenting, or summarizing, testimony or other communications. The
Code of Conduct and Ethics of Foreign Language Interpreters and Translators is
hereby incorporated by reference and includes subsequent amendments and
editions. A copy may be obtained at no charge from the North Carolina
Administrative Office of the Court's website, http://www.nccourts.org/Citizens/CPrograms/Foreign/Documents/guidelines.pdf,
or upon request, at the offices of the Commission, as set forth in Rule 04 NCAC
10A .0101.
History Note: Authority G.S. 97-80(a); 97-80(c);
143-296; 143-300;
Eff. January 1, 2011;
Amended Eff. July 1, 2014.
04 NCAC 10G .0105 SANCTIONS (effective july 1, 2014)
If a person or party whose attendance at a mediated
settlement conference is required by Rule.0104 of this Subchapter fails to attend
or cancels, without Commission approval in accordance with Paragraph (f) of
Rule .0101 of this Subchapter, a duly ordered mediated settlement conference
without good cause, the Commission may impose upon the party any lawful
sanction, including holding the party in contempt or requiring the party to pay
fines, attorneys' fees, mediator fees and expenses and loss of earning incurred
by persons attending the conference. Any sanctions that are assessed against a
party consistent with the Workers' Comp Act, the Tort Claims Act and the Rules
in this Subchapter, including mediated settlement conference postponement fees
and sanctions for the unauthorized cancellation or failure to appear at the
conference, may be assessed against the party depending on whose conduct
necessitated the assessment of sanctions.
History Note: Authority G.S. 97-80(a),(c); 143-296;
143-300; Rule 5 of Rules Implementing Statewide Mediated Settlement Conference
in Superior Court Civil Actions;
Eff. January 16, 1996;
Amended Eff. October 1, 1998;
Recodified from 04 NCAC 10A .0616;
Amended Eff. July 1, 2014; June 1, 2000.
04 NCAC 10G .0106 AUTHORITY AND DUTIES OF MEDIATORS
(a) Control of Conference. The mediator shall at all times
be in control of the mediated settlement conference and the procedures to be
followed. Except as otherwise set forth in the Rules in this Subchapter with
regard to the finalization of the parties' agreement, there shall be no audio,
video, electronic or stenographic recording of the mediation process by any
participant.
(b) Private Consultation. The mediator may meet and
consult privately with any participant prior to or during the conference. The
fact that private communications have occurred with a participant shall be
disclosed to all other participants at the beginning of the conference.
(c) Scheduling the Conference. The mediator shall make a
good faith effort to schedule the conference at a time that is convenient with
the parties, attorneys and mediator. In the absence of agreement, the mediator
shall select the date for the conference.
(d) Information to the Parties. The mediator shall define
and describe the following to the parties at the beginning of the mediated
settlement conference:
(1) the process of mediation;
(2) the differences between mediation and other
forms of conflict resolution;
(3) the costs of the conference;
(4) the facts that the conference is not a
trial or hearing, the mediator is not acting in the capacity of a Commissioner
or Deputy Commissioner and shall not act in such capacity in the subject case
at any time in the future, and the parties retain their right to a hearing if
the parties do not reach a settlement;
(5) the circumstances under which the mediator
may meet alone with any of the parties or with any other person;
(6) whether and under what conditions,
communications with the mediator will be held in confidence during the
conference;
(7) the inadmissibility of conduct and
statements as provided by G.S. 8C-1, Rule 408 and Paragraph (f) of Rule. 0103 of
this Subchapter;
(8) the duties and responsibilities of the
mediator and the parties; and
(9) the fact that any agreement reached will be
reached by mutual consent of the parties.
(e) Disclosure. The mediator shall be impartial and advise
all parties of any circumstances bearing on possible bias, prejudice or
partiality.
(f) Declaring Impasse. The mediator shall determine when
mediation is not viable, that an impasse exists, or that mediation should end.
(g) Reporting Results of Conference. In all cases within
the Commission's jurisdiction, whether mediated voluntarily or pursuant to an
order of the Commission, the mediator shall report the results of the mediated
settlement conference on a form provided by the Commission. If an agreement
was reached, the report shall state whether the issue or matter under mediation
will be resolved by Commission form agreement, compromise settlement agreement,
other settlement agreement, voluntary dismissal or removal from the hearing
docket, and shall identify the persons designated to file or submit for
approval the agreement, or dismissal. The mediator shall not attach a copy of
the parties' memorandum of agreement to the mediator's report transmitted to
the Commission and, except as permitted under the Rules in this Subchapter, or
unless deemed necessary in the interests of justice by the Commission, the
mediator shall not disclose the terms of settlement in the mediator's report.
The Commission shall require the mediator to provide statistical data for
evaluation of the mediated settlement conference program on forms provided by
the Commission.
(h) Scheduling and Holding the Conference. The mediator
shall schedule the mediated settlement conference in consultation with the
parties and conduct the conference prior to the completion deadline set out in
the Commission's order. Deadlines for completion of the conference shall be
observed by the mediator unless the time limits are changed by the Commission.
(i) Standards of Conduct. All mediators conducting
mediated settlement conferences pursuant to the Rules in this Subchapter shall
adhere to the Standards of Professional Conduct for Mediators adopted by
the Supreme Court of North Carolina and enforced by the North Carolina Dispute
Resolution Commission. The Standards of Professional Conduct for Mediators
is hereby incorporated by reference and includes subsequent amendments and
editions. A copy may be obtained at no charge from the North Carolina
Administrative Office of the Court's website, http://www.nccourts.org/Courts/CRS/Councils/DRC/Documents/StandardsofConduct_1-1-12.pdf,
or upon request, at the offices of the Commission, located in the Dobbs
Building, 430 North Salisbury Street, Raleigh, North Carolina, between the
hours of 8:00 a.m. and 5:00 p.m.
History Note: Authority G.S. 97-80(a),(c); 143-296;
143-300; Rule 6 of Rules Implementing Statewide Mediated Settlement Conference
in Superior Court Civil Actions;
Eff. January 16, 1996;
Amended Eff. October 1, 1998;
Recodified from 04 NCAC 10A .0616;
Amended Eff. July 1, 2014; June 1, 2000.
04 NCAC 10G .0107 COMPENSATION OF THE MEDIATOR
(a) By Agreement. When the mediator is stipulated to by
the parties, compensation shall be as agreed upon between the parties and the mediator.
(b) By Commission Order. When the mediator is appointed by
the Commission, the mediator's compensation shall be as follows:
(1) Conference Fees. The mediator shall be
paid by the parties at the rate of one hundred fifty dollars ($150.00) per hour
for mediation services provided at the mediated settlement conference.
(2) Administrative Fees. The parties shall pay
to the mediator a one time, per case administrative fee of one hundred fifty
dollars ($150.00). The mediator's administrative fee shall be paid in full
unless, within 10 days after the mediator has been appointed, written notice is
given to the mediator and to the Dispute Resolution Coordinator that the issues
for which a request for hearing was filed have been fully resolved or that the
hearing request has been withdrawn.
(3) Postponement Fees. As used in this
Subchapter, the term "postpone" means to reschedule or otherwise not
proceed with a scheduled mediated settlement conference after the conference
has been scheduled to convene on a specific date. After a conference is
scheduled to convene on a specific date, the conference may not be postponed
unless the requesting party notifies all other parties of the grounds for the
requested postponement and obtains the consent and approval of the mediator or
the Dispute Resolution Coordinator. If the conference is postponed without
good cause, the mediator shall be paid a postponement fee. The postponement
fee shall be three hundred dollars ($300.00) if the conference is postponed
within seven calendar days of the scheduled date, and one hundred fifty dollars
($150.00) if the conference is postponed more than seven calendar days prior to
the scheduled date. Unless otherwise ordered by the Commission in the interests
of justice, postponement fees shall be allocated in equal shares to the party
or parties requesting the postponement. As used in this Rule, "good
cause" shall mean that the reason for the postponement involves a
situation over which the party seeking the postponement has no control,
including a party or attorney's illness, a death in a party or attorney's
family, a demand by a judge that a party or attorney for a party appear in
court, or inclement weather such that travel is prohibitive.
(4) The settlement of a case prior to the
scheduled date of the mediated settlement conference shall be good cause to
cancel the mediation without the approval of the mediator or the Dispute
Resolution Coordinator. The parties shall notify the mediator of any
cancellation due to settlement. The mediator may charge a cancellation fee of
one hundred fifty dollars ($150.00) if notified of the cancellation within 14
days of the scheduled date, or three hundred dollars ($300.00) if notified
within seven days of the scheduled date.
(c) Payment by Parties. Payment is due upon completion of
the mediated settlement conference; provided, that the State shall be billed at
the conference and shall pay within 30 days of receipt of the bill, and
insurance companies or carriers whose written procedures do not provide for
payment of the mediator at the conference shall pay within 15 days of the
conference. Unless otherwise agreed to by the parties or ordered by the
Dispute Resolution Coordinator due to a party or parties violating a rule in
this Subchapter, the costs of the conference shall be allocated to the parties,
as follows:
(1) one share by plaintiff(s);
(2) one share by the workers' compensation
defendant-employer or its insurer, or if more than one employer or carrier is
involved, or if there is a dispute between employer(s) or carrier(s), one share
by each separately represented entity;
(3) one share by participating third-party tort
defendants or their carrier, or if there are conflicting interests among them,
one share from each defendant or group of defendants having shared interests;
and
(4) if applicable, one share by the defendant
State agency in a Tort Claims Act case.
Parties obligated to pay a share of the costs are
responsible for equal shares; provided, however, that in workers' compensation
claims the defendant shall pay the plaintiff's share of mediation,
postponement, and substitution fees, as well as defendant's own share. If
plaintiff requests postponement of the mediated settlement conference,
defendants shall be entitled to a credit for the postponement fee.
(d) Unless the Dispute Resolution Coordinator enters an
order allocating such fees to a particular party due to the party violating a
Rule in this Subchapter, the fees may be taxed as other costs by the Commission
in an Order or Opinion and Award. After the case is concluded, the defendant
shall be reimbursed for the plaintiff's share of such fees from any
compensation determined to be due to the plaintiff, and the defendant may
withhold funds from any award for this purpose.
History Note: Authority G.S. 97-80(a); 97-80(c);
143-296; 143-300; Rule 7 of Rules Implementing Statewide Mediated Settlement
Conference in Superior Court Civil Actions;
Eff. January 16, 1996;
Amended Eff. October 1, 1998;
Recodified from 04 NCAC 10A .0616;
Amended Eff. July 1, 2014; January 1, 2011; June 1, 2000.
04 NCAC 10G .0108 MEDIATOR
CERTIFICATION AND DECERTIFICATION
(a) Party Selection. The parties may, by mutual consent,
select any North Carolina Dispute Resolution Commission-certified mediator,
with or without the qualifications in Paragraph (b) of this Rule, as the
parties' mediator.
(b) Appointment of Mediators. If the parties have agreed
or been ordered to mediate, and cannot agree on the selection of a mediator,
the Commission shall appoint a mediator, who holds current certification from
the North Carolina Dispute Resolution Commission that he or she is qualified to
carry out mandatory mediations in the Superior Courts of the State of North
Carolina and who has filed a declaration with the Commission, on forms provided
by the Commission, stating that the declarant agrees to accept and perform
mediations of disputes before the Commission with reasonable frequency when
called upon for the fees and at the rates of payment specified by the
Commission. A mediator making this declaration shall notify the Commission when
any of the facts declared are no longer accurate.
(c) Failure of Mediator to Appear at Conference. If a
mediator fails to appear at a scheduled mediated settlement conference, the
mediator is not entitled to the administrative fee for the case.
History Note: Authority G.S. 97-80(a),(c); 143-296;
143-300; Rule 8 of Rules Implementing Statewide Mediated Settlement Conference
in Superior Court Civil Actions;
Eff. January 16, 1996;
Amended Eff. October 1, 1998;
Recodified from 04 NCAC 10A .0616;
Amended Eff. July 1, 2014; January 1, 2011; June 1, 2000.
04 NCAC 10G .0109 NEUTRAL EVALUATION
(a) Nature of Neutral Evaluation. As used in this
Subchapter, neutral evaluation is an abbreviated presentation of facts and
issues by the parties to a neutral evaluator at an early stage of the case.
The neutral evaluator is responsible for evaluating the strengths and
weaknesses of the case, and for providing a candid assessment of liability,
settlement value, and a dollar value or range of potential awards if the case
proceeds to a hearing. The neutral evaluator is also responsible for
identifying areas of agreement and disagreement and suggesting necessary and
appropriate discovery.
(b) When Conference Is to Be Held. The provisions applicable
to the scheduling of mediated settlement conferences set forth in Rule .0103
of this Subchapter also apply to neutral evaluation proceedings.
(c) Pre-conference Submissions. No later than 20 days
prior to the date established for the neutral evaluation conference to begin,
each party may, but is not required to, furnish the evaluator with written
information about the case, and shall at the same time certify to the evaluator
that the party has served a copy of such summary on all other parties in the
case. The information provided to the neutral evaluator and the other parties
under this Rule shall be a summary of the facts and issues in the case, shall
not be more than 10 pages in length, and shall include as attachments copies of
any documents supporting the party's summary. Information provided to the
neutral evaluator and to the other parties pursuant to this Paragraph shall not
be filed with the Commission.
(d) Replies to Pre-conference Submissions. No later than
five days prior to the date established for the neutral evaluation conference
to begin, any party may, but is not required to, send additional written
information to the neutral evaluator responding to the submission of an
opposing party. The party's response shall not exceed five pages in length,
and the party sending the response shall certify to the neutral evaluator that
the party has served a copy of the response on all other parties in the case. The
response shall not be filed with the Commission.
(e) Conference Procedure. Prior to a neutral evaluation
conference, the neutral evaluator may, if he or she deems it necessary, request
additional written information from any party. At the conference, the neutral
evaluator may address questions to the parties and give the parties an
opportunity to complete their summaries with a brief oral statement.
(f) Modification of Procedure. Subject to the approval of
the neutral evaluator, the parties may agree to modify the procedures for
neutral evaluation required by the Rules in this Subchapter, or the procedures
may be modified by order of the Commission in the interests of justice. The
modified procedures may include the presentation of submissions in writing or
by telephone in lieu of physical appearance at a neutral evaluation conference,
and may also include revisions to the time periods and page limitations
concerning the parties' submissions.
(g) Evaluator's Opening Statement. At the beginning of the
neutral evaluation conference, the neutral evaluator shall define and describe
the following points to the parties:
(1) the facts that:
(A) the conference is not a hearing,
(B) the neutral evaluator is not acting in the capacity
of a Commissioner or Deputy Commissioner and shall not act in such capacity in
the subject case at any time in the future,
(C) the neutral evaluator's opinions are not binding on
any party, and
(D) the parties retain their right to a hearing if the
parties do not reach a settlement;
(2) the fact that any settlement reached will
be only by mutual consent of the parties;
(3) the process of the proceeding;
(4) the differences between the proceeding and
other forms of conflict resolution;
(5) the costs of the proceeding;
(6) the inadmissibility of conduct and
statements as provided by G.S. 8C-1, Rule 408 and Paragraph (f) of Rule .0103
in this Subchapter; and
(7) the duties and responsibilities of the
neutral evaluator and the participants.
(h) Oral Report to Parties by Evaluator. In addition to
the written report to the Commission required under the Rules in this
Subchapter, at the conclusion of the neutral evaluation conference, the neutral
evaluator shall issue an oral report to the parties advising the parties of the
neutral evaluator's opinion of the case. The opinion shall include a candid
assessment of liability, estimated settlement values and options, and the
strengths and weaknesses of the parties' claims and defenses if the case
proceeds to a hearing. The oral report shall also contain a suggested
settlement or disposition of the case and the reasons therefor. The neutral
evaluator shall not reduce his or her oral report to writing and shall not
inform the Commission thereof.
(i) Report of Evaluator to Commission. Within 10 days
after the completion of the neutral evaluation conference, the neutral
evaluator:
(1) shall submit to the Dispute Resolution
Coordinator a written report using a form prepared and distributed by the
Commission, stating:
(A) when and where the conference was held,
(B) the names of those persons who attended the
conference,
(C) whether or not an agreement was reached by the
parties, and
(D) whether the issue or matter will be resolved by
Commission form agreement, compromise settlement agreement, other settlement
agreement, voluntary dismissal or removal from the hearing docket;
(2) shall identify the persons designated to
file or submit for approval such agreement, or dismissal; and
(3) shall provide statistical data for
evaluation of the settlement conference programs on forms provided by the
Commission.
(j) Evaluator's Authority to Assist Negotiations. If all
parties at the neutral evaluation conference request and agree, the neutral
evaluator may assist the parties in settlement discussions. If the parties do
not reach a settlement during the discussions, the neutral evaluator shall
complete the neutral evaluation conference and make his or her written report
to the Commission as if the settlement discussions had not occurred.
(k) Finalizing Agreement. If the parties are able to reach
an agreement before the conclusion of the neutral evaluation conference and
before the evaluator provides his report to the Commission, the parties shall
reduce the agreement to writing, specifying all the terms of the parties' agreement
that bear on the resolution of the dispute before the Commission, and shall
sign the agreement along with the parties' respective counsel. By stipulation
of the parties and at their expense, the agreement may be electronically or
stenographically recorded. All agreements for payment of compensation shall be
submitted for Commission approval and shall be filed with the Commission within
20 days of the conclusion of the conference.
(l) Applicability of Mediation Rules and Duties. All
provisions and duties applicable to mediated settlement conferences set forth
in Rule .0103 through Rule .0107 of this Subchapter, that are not in conflict
with the provisions and duties of Rule .0109 of this Subchapter, apply to
neutral evaluation conferences conducted under the Rules in this Subchapter.
(m) 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 evaluator and any counsel or
party on any matter related to the proceeding except with regard to
administrative matters.
(n) Adherence to Standards of Conduct for Neutrals. All
neutral evaluators conducting neutral evaluation conferences pursuant to the
Rules in the Subchapter shall adhere to any applicable standards of conduct that
are adopted by the North Carolina Dispute Resolution Commission and are hereby
incorporated by reference and include subsequent amendments and editions. A
copy may be obtained at no charge from The North Carolina Court System's
website, http://www.nccourts.org/Courts/CRS/Councils/DRC/Default.asp, or upon
request, at the offices of the Commission, located in the Dobbs Building, 430
North Salisbury Street, Raleigh, North Carolina, between the hours of 8:00 a.m.
and 5:00 p.m.
History Note: Authority G.S. 97-80(a),(c); 143-296;
143-300; Rule 11 of Rules Implementing Statewide Mediated Settlement Conference
in Superior Court Civil Actions;
Eff. January 16, 1996;
Amended Eff. October 1, 1998;
Recodified from 04 NCAC 10A .0616;
Amended Eff. July 1, 2014; January 1, 2011; June 1, 2000.
04 NCAC 10G .0110 WAIVER OF RULES
In the interests of justice or to promote judicial economy,
the Commission may, except as otherwise provided by the rules in this
Subchapter, waive or vary the requirements or provisions of any of the rules in
this Subchapter in a case pending before the Commission upon written
application of a party or upon its own initiative only if the employee is not
represented by counsel. Factors the Commission shall use in determining whether
to grant the waiver are:
(1) the necessity
of a waiver;
(2) the party's
responsibility for the conditions creating the need for a waiver;
(3) the party's
prior requests for a waiver;
(4) the precedential
value of such a waiver;
(5) notice to and
opposition by the opposing parties; and
(6) the harm to the
party if the waiver is not granted.
History Note: Authority G.S. 97-80(a); 97-80(c);
143-296; 143-300;
Eff. January 16, 1996;
Amended Eff. October 1, 1998;
Recodified from 04 NCAC 10A .0616;
Amended Eff. July 1, 2014; June 1, 2000.
04 NCAC 10G .0111 MOTIONS
Unless otherwise indicated by the Rules in this Subchapter
or an applicable order by the Commission in the interests of justice or
judicial economy, motions pursuant to the Rules in this Subchapter shall be
addressed to the Commission's Dispute Resolution Coordinator and served on all
parties to the claim and the settlement procedure. Responses may be filed with
the Commission within 10 days after the date of receipt of the motion.
Notwithstanding the above, the Commission may, in the interests of justice, act
upon oral motions, or act upon motions prior to the expiration of the 10-day
response period. Motions shall be decided without oral argument unless otherwise
ordered in the interests of justice. Any appeals from orders issued pursuant to
a motion under the Rules in this Subchapter shall be addressed to the attention
of the Commission Chair or the Chair's designee for appropriate action.
History Note: Authority G.S. 97-80(a),(c); 143-296;
143-300;
Eff. January 16, 1996;
Amended Eff. October 1, 1998;
Recodified from 04 NCAC 10A .0616;
Amended Eff. July 1, 2014; January 1, 2011; June 1, 2000.
04 NCAC 10G .0112 MISCELLANEOUS
Throughout the Rules in this Subchapter any reference to the
number of days within which any act may be performed shall mean and refer to
calendar days, and shall include Saturdays, Sundays and holidays established by
the State Personnel Commission. Provided, however, that if the last day (a) to
file a motion, (b) to give notice of the selection of a mediator, or (c) for a
pro se plaintiff to give notice that the plaintiff requests mediation is a
Saturday, Sunday or holiday established by the State Personnel Commission, the
motion or notice may be filed or given on the next day that is not a Saturday,
Sunday or holiday established by the State Personnel Commission.
History Note: Authority G.S. 97-80(a),(c); 143-296;
143-300;
Eff. January 16, 1996;
Amended Eff. October 1, 1998;
Recodified from 04 NCAC 10A .0616;
Amended Eff. July 1, 2014; June 1, 2000.