Section .0100 – Mediation And Settlement

Link to law: http://reports.oah.state.nc.us/ncac/title 04 - commerce/chapter 10 - industrial commission/subchapter g/subchapter g rules.html
Published: 2015

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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.