Western District of North Carolina
IN BRIEF
Process summary
ADR generally.
Under the CJRA plan as amended on December 16, 1994, litigants in almost all civil cases filed in the Western District of North Carolina after January 1, 1995, are required to participate in mediation or another form of ADR. Other ADR forms authorized by the court include arbitration, early neutral evaluation, minitrial, and summary jury trial. Litigants must notify the court of their ADR choice within thirty days of the close of discovery by filing an ADR stipulation. If the parties do not select an ADR option or if they cannot agree on a process, the court refers the case to its mediation program. If the parties select a process other than mediation, they must provide the court with proposed procedural rules for the process.
Mediation.
Mediation is one of several ADR options authorized by the court's CJRA plan as amended on December 16, 1994. See below.
Judicial settlement conferences.
Under the CJRA plan as amended on December 16, 1994, the assigned judge may refer any case to a mandatory settlement conference, or a party may request a settlement conference at any time. A client with full settlement authority must attend the settlement conference with counsel.
Of note
Obligations of counsel.
Attorneys are required to meet and confer about case management issues, including the suitability of ADR; they must certify to the court they have met, and if possible, submit a joint proposed case management plan. Counsel must also be prepared to discuss settlement and ADR with the court at all case conferences.
Information from court.
At filing, counsel receive a copy of the district's CJRA plan, which describes the district's differentiated case management system and ADR initiatives.
For more information
Frank G. Johns, Clerk of Court, 704-344-6203
IN DEPTH
Mediation in North Carolina Western
Overview
Description and authorization.
Under the CJRA plan as amended on December 16, 1994, litigants in almost all civil cases filed in the Western District of North Carolina after January 1, 1995, must participate in mediation or another form of ADR. If parties do not select an ADR process, the court refers the case to the court-based mediation program. Referral occurs after the close of discovery. The mediation sessions are conducted by trained attorney-mediators selected from the court's roster or, with court approval, from the private sector. Parties who select their own mediator must reach agreement with the mediator regarding the fee. Mediators appointed by the court receive the court-set fee, while parties found indigent by the court pay no fee. The process is governed by the CJRA plan and by the Rules Governing Mediated Settlement Conferences in Superior Court Civil Actions promulgated by the North Carolina Supreme Court.
Number of cases.
Information on the number of cases referred to mediation is not yet available.
Case selection
Eligibility of cases.
Almost all civil cases filed on or after January 1, 1995, will be referred by the court to mediation, or another form of ADR selected by the litigants, except habeas corpus proceedings or other actions for extraordinary writs; appeals from rulings of administrative agencies; forfeitures of seized property; and bankruptcy appeals. Other cases may be excluded from mandatory ADR by the assigned judge on a case-by-case basis, based on a determination that the case is not suited to ADR.
Referral method.
Referral to some form of ADR is required in almost every civil case. Litigants in civil cases filed after January 1, 1995, are required to notify the court of their choice by written stipulation for alternative dispute resolution within thirty days of their discovery deadline. If no stipulation is filed, the court refers the case to mediation, and an ADR order is entered.
Opt-out or removal.
Within ten days of the court's order of referral, a party may file a motion with the referring judge to dispense with or defer the mediation for good cause.
Scheduling
Referral.
The assigned judge issues the ADR referral order after receiving the parties' ADR stipulation, which must be filed within thirty days of the discovery deadline in the case.
Written submissions.
No submissions are required.
Mediation session.
Mediation sessions are generally held at the courthouse, and logistical arrangements are made by the mediator. The mediation session (or other selected ADR process) must be completed within ninety days of the entry of the ADR referral order or by the trial date, whichever is earlier.
Number and length of sessions.
This information is not yet available.
Program features
Discovery and motions.
All case activities must go forward during the mediation process unless stayed by judicial order.
Party roles and sanctions.
In addition to counsel, the party or a representative with full settlement authority must attend the mediation session. If a government agency is party to the suit, a representative of the agency with full authority to negotiate on behalf of the agency and to recommend settlement to the appropriate agency decision maker must attend. For an insured party, a settlement-empowered insurer representative other than outside counsel must attend. If the participant lives more than 200 miles from the location of the mediation session, attendance may be by telephone with prior consent of the assigned judge. Monetary or other sanctions may be imposed for failure to comply with the attendance requirements.
Outcome.
Within seven days of the conclusion of the mediation session, the mediator must file a report with the court indicating whether the case settled.
Confidentiality.
ADR proceedings and information relating to or disclosed during the proceedings are protected by Fed. R. Evid. 408. A neutral may not be deposed or called as a witness to testify at any subsequent proceeding concerning anything said or done in an ADR proceeding. The neutral's notes are privileged and not subject to discovery. No record is made of the mediation session, and ex parte communication between the neutral and litigants is prohibited without party consent, except for scheduling purposes.
Neutrals
Qualifications and training.
To be certified, a mediator must be a member of the North Carolina Bar, have five years of experience as a judge, attorney, law professor or mediator, and have completed at least forty hours of mediation training in a program certified by the state. In addition, candidates must pay an administrative fee and must agree to mediate indigent cases without compensation.
Selection for case.
Mediator selection is governed by the mediation rules promulgated by the North Carolina Supreme Court, which also govern the state court mediation programs. See Rules Governing Mediated Settlement Conferences in Superior Court Civil Actions, (Rule 2: Selection of Mediator). Under these rules, litigants must select a mediator within twenty-one days of the court's order of referral or must notify the court of their inability to agree on a mediator, whereupon the assigned judge appoints a mediator. The parties may select any mediator certified under the state rules, or the parties may ask the assigned judge to approve a mediator who is not state certified. The court makes a directory of certified mediators available to litigants.
Disqualification.
The mediator has a duty to advise all parties of any circumstances bearing on possible bias, prejudice, or partiality.
Immunity.
The court believes that neutrals acting pursuant to the court's ADR procedures have judicial immunity in the same manner and to the same extent as a judge of the district court.
Fees.
When the mediator is selected by the parties, the mediator's fee is determined by the parties and the mediator. When the mediator is appointed by the court, the mediator is compensated at a court-set rate. Parties usually pay the mediator's fees in equal shares. Parties found indigent by the court have no payment obligations, and the neutral's fee is reduced by the indigent party's share.
Program administration
The program is administered by the clerk's office, and the assigned judge handles individual case management matters relating to mediation or other ADR in that judge's cases.
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