[ADR] Middle District of North Carolina

Middle District of North Carolina

IN BRIEF

Process summary

Mediation. Under its CJRA plan, effective December 1, 1993, the Middle District of North Carolina established a mediation program for specified types of cases. See below.

Arbitration. The court suspended its mandatory, nonbinding court-annexed arbitration program for cases of $150,000 or less on December 1, 1993. Under the program, established in 1985 and authorized by 28 U.S.C. зз 651-658 and Local Rules 601-608, the court automatically referred all civil cases seeking money damages of $150,000 or less to arbitration. The local rule on arbitration has been superseded by the new rule authorizing mediation.

In suspending the arbitration program, the court reported that the arbitration program's potential for cost and time savings were hindered by Congress' adoption of 28 U.S.C. з 653(b) forbidding arbitration "until 30 days after the disposition of the district court of any motion to dismiss the complaint, motion for judgment on the pleadings, motion to join necessary parties, or motion for summary judgment . . . ." Delaying arbitration until resolution of dispositive motions prevented the cost and time savings anticipated by the court. Subsequently, arbitration has been used only in cases designated for that process before December 1, 1993, and no other cases have been referred to arbitration.

Judicial settlement conferences. The judges conduct settlement conferences in all cases set for trial during four master calendar trial sessions conducted each year pursuant to the court's CJRA plan. About twenty-five to thirty-five cases are set on each trial calendar, and of these about half settle at a judicial settlement conference. Another 40 percent settle after receiving notice of the trial date, and the remainder are tried.

Of note

Evaluation. Evaluations of the court's arbitration program are reported in Barbara Meierhoefer, Court-Annexed Arbitration in Ten District Courts (Federal Judicial Center 1990), and E. Allan Lind, Arbitrating High-Stakes Cases-An Evaluation of Court-Annexed Arbitration in a United States District Court (The Institute for Civil Justice, RAND, 1990).

For more information

J. P. Creekmore, Clerk of Court, 910-333-5198; Jean Maloyed, Mediation Coordinator, 910-333-5347

IN DEPTH

Mediation in North Carolina Middle

Overview

Description and authorization. Under its CJRA plan and Local Rules 601-607, both effective December 1, 1993, the Middle District of North Carolina has established a mandatory mediation program. Specified case types, including contract, tort, and civil rights, are automatically referred to mediation at filing. The purpose of the program is to provide parties with early settlement assistance from an experienced attorney-mediator. The parties share the mediator's fee equally, which is set by the court at $125 an hour.

Number of cases. From January through December 1994, 292 cases were referred to mediation.

Case selection

Eligibility of cases. The court has designated certain case types as eligible for automatic referral to mediation, including specified categories of contract, tort, civil rights, labor, property rights, and antitrust cases; cases involving banks and banking and securities, commodities, and exchange; and environmental matters. In any case not automatically referred, the court may in its discretion order mediation, or the parties may stipulate to mediation. Unless specifically assigned by a judge, cases ineligible for mediation include pro se, specified contract and real property, prisoner, forfeiture/penalty, bankruptcy, Social Security, and federal tax cases, as well as cases under other specified statutes.

Referral method. Eligible cases are referred to mediation automatically at filing. Notice is sent to the parties, along with a list of mediators.

Opt-out or removal. Parties may move individually or jointly for exemption for good cause.

Scheduling

Referral. Notice of referral is sent shortly after the case is filed.

Written submissions. No later than five business days before the scheduled date of the mediation conference, any party may submit a confidential position paper to the mediator to familiarize the mediator with the case.

Mediation session. The mediation session is held as early as possible in the case unless the court specifically orders otherwise.

Number and length of sessions. The number and length of sessions are at the discretion of the mediator and parties.

Program features

Discovery and motions. Discovery is not tolled during the mediation process.

Party roles and sanctions. Individual parties, corporate representatives, or insurance representatives with full authority to settle the claim must attend the mediation session with counsel. If a person fails to attend without good cause, the court may impose sanctions, including but not limited to attorney's fees, the mediator's fees, and expenses incurred by those attending the session.

Outcome. At the end of the session, the mediator must immediately submit to the clerk a status report. If the parties reach a settlement agreement, they must put it in writing and prepare a stipulation of dismissal or consent judgment for presentation to the court.

Confidentiality. The proceedings are confidential. The mediator's report is not included in the case file but is placed in a separate, confidential file.

Neutrals

Qualifications and training. Attorneys may serve on the court's roster if they have been certified as mediators pursuant to the rules of the North Carolina Supreme Court and have at least eight years of civil trial practice or membership on the faculty of an accredited law school. Attorneys who were on the court's panel of arbitrators as of December 1, 1993, may also serve. The North Carolina Supreme Court requires forty hours of mediation training through a program supervised by the North Carolina Bar Association.

Selection for case. Parties are encouraged to select their own mediator by agreement and to notify the court of their selection within twenty days of the initial pretrial order. They may choose a mediator from the court's roster or elsewhere, but mediators not on the court's roster must agree to be bound by the court's rules. If the parties do not file a timely selection, the clerk selects the mediator from the court's roster and notifies the parties.

Disqualification. Up to twenty days before a scheduled mediation conference, the court may disqualify a mediator for bias or prejudice as provided in 28 U.S.C. з 144. A mediator must disqualify himself or herself if the mediator would be required to do so under 28 U.S.C. з 455 if he or she were a justice, judge, or magistrate judge.

Immunity. The court has not addressed this issue.

Fees. The mediator is compensated by the parties at an hourly rate set by the chief judge (currently $125 an hour) and shared equally by the parties. Parties who cannot pay may seek relief from the obligation by filing a motion and affidavit of financial standing. If the party is excused from payment, the mediator's service is provided pro bono.

Program administration

The mediation program is administered by the clerk's office.

Excerpted from ADR and Settlement in the Federal District Courts: A Sourcebook for Judges & Lawyers, 1996, a publication of the Federal Judicial Center and CPR Institute for Dispute Resolution