Eastern District of North Carolina
IN BRIEF
Process summary
Mediation.
Under its CJRA plan, effective December 1, 1993, and Local Rule 32, the Eastern District of North Carolina has authorized a mediation program. See below.
Magistrate judge settlement conferences.
Magistrate judges preside over settlement conferences when a conference is directed by the court or requested by all parties. District judges rarely participate in settlement conferences. Authorized representatives with full settlement authority must attend. The conferences are confidential.
Summary jury and bench trials.
On occasion the court will refer a case to a summary jury or bench trial. Two of the court's magistrate judges conduct these advisory trials.
Of note
Information from court.
The court intends to establish a process for sending ADR information to all parties when their case is four months old.
For more information
David W. Daniel, Clerk of Court, 919-856-4407; Carol Manning Morgan, CJRA Staff Attorney, 919-856-4370
IN DEPTH
Mediation in North Carolina Eastern
Overview
Description and authorization.
Under its CJRA plan, effective December 1, 1993, and Local Rule 32, the Eastern District of North Carolina has established a mediation program. The program, which was implemented in February 1994, authorizes the court on its own motion or at the request of the parties to refer any case to mediation. A single mediator chosen by the court from the court's roster or selected by the parties with court approval meets with the parties in an effort to reach settlement. The mediator is permitted to meet privately with both sides, and all statements made by the participants are confidential. The mediator is paid by the parties at a court-set fee or at market rates approved by the court.
Number of cases.
No cases were referred to mediation between February 1994, when the program was adopted, and September 1994.
Case selection
Eligibility of cases.
Any civil case is eligible for referral to mediation. No case types are excluded or assumed inappropriate.
Referral method.
The court may on the request of all parties or on its own motion order any action or portion thereof to mediation.
Opt-out or removal.
A party may move within ten days of the court's order referring an action or portion thereof to mediation to dispense with or defer the mediation conference. The court may grant the motion only for good cause shown.
Scheduling
Referral.
A referral to mediation is made when the parties request it or the court believes it is appropriate.
Written submissions.
At any time after the appointment of the mediator a party may send the mediator a memorandum presenting its contentions and positions. It does not need to send the memorandum to the other parties.
Mediation session.
Unless otherwise ordered by the court, the mediation session must begin within sixty days of the court's referral order and be completed within thirty days of the first session. The mediator is responsible for making all arrangements for the sessions, which should generally be held at the courthouse, and for notifying parties and counsel.
Number and length of sessions.
The length of a mediation session depends on the complexity of the case.
Program features
Discovery and motions.
Other case activities, including discovery, motions, and trial preparation, proceed during the mediation process unless stayed by judicial order.
Party roles and sanctions.
The mediation session must be attended by all individual parties; any person having authority to settle on behalf of a corporate party; a governmental representative with full authority to settle; the parties' counsel; and, for insurance companies, a representative other than outside counsel who has full authority to settle. All parties must be prepared to discuss in detail and good faith all liability and damages issues and their positions relative to settlement. If a party fails to attend or to participate in good faith in a mediation conference, the court may impose sanctions, including attorneys' fees, mediator fees and expenses, and expenses incurred by parties attending the conference; a contempt order; or any other sanction authorized by Fed. R. Civ. P. 37(b).
Outcome.
The mediator must file a report with the court in writing within five days of the close of the mediation session indicating who attended the conference and whether settlement was reached. If an agreement was reached, the report states whether the action will conclude by consent judgment or voluntary dismissal and identifies the person designated to file these papers. If agreement was not reached, the report indicates whether there has been compliance with the court's mediation requirements.
Confidentiality.
The entire mediation proceeding is confidential. All proceedings and any statements made by any party, attorney, or other participant are privileged and may not be reported, recorded, placed in evidence, made known to the trial court or jury, or construed for any purpose as an admission. No party is bound by anything done or said at the conference unless a settlement is reached.
Neutrals
Qualifications and training.
An individual may be certified by the chief judge to be a mediator if he or she (1) is a former state judge who presided in a court of general jurisdiction and was also a member of the bar in the state in which he or she presided; (2) is a retired federal judge; (3) has been certified as a mediator by the North Carolina Administrative Office of the Courts pursuant to the Rules Implementing Court-Ordered Mediated Settlement Conferences adopted by the Supreme Court of North Carolina (which requires forty hours of training); or (4) has been a member of the North Carolina Bar for at least ten years and is currently admitted to the bar of this court.
Selection for case.
The judge's order of referral either appoints a mediator or directs the parties to notify the judge of their selection within fourteen days. Mediators are selected from the court's roster. If the judge finds that the mediator selected by the parties is not qualified, the judge may select another mediator.
Disqualification.
Any person selected as a mediator may be disqualified for bias or prejudice as provided in 28 U.S.C. § 144 and must be disqualified in any case in which such action would be required by a justice, judge, or magistrate judge governed by 28 U.S.C. § 455. Any party may move the court to enter an order disqualifying a mediator for good cause. Mediators have a duty to disclose any fact bearing on their qualifications that would be grounds for disqualification. If the court rules that a mediator is disqualified from hearing a case, an order will be entered setting forth the name of a qualified replacement. Nothing in this provision precludes mediators from disqualifying themselves or refusing any assignment. The time for mediation is tolled during any periods in which a motion to disqualify is pending.
Immunity.
Local Rule 32 states, "A mediator appointed by the Court pursuant to these rules shall have judicial immunity in the same manner and to same extent as a judge."
Fees.
The order of referral either adopts the court-set rate of compensation for neutrals or directs the parties to agree on a rate with the neutral and to notify the court within fourteen days. If the parties cannot agree, the court will set the rate of payment for the mediator. The fee is borne equally by the parties unless they agree to another arrangement. Mediators may not accept any other compensation without written approval of the court.
Program administration
The program is administered by the clerk's office. Any problems that may arise are referred to the clerk of court.
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