Local Rule LR 83.9e: PROCEDURES FOR MEDIATED SETTLEMENT CONFERENCES

LR 83.9e PROCEDURES FOR MEDIATED SETTLEMENT CONFERENCES

(a) Time Period for the Mediated Settlement Conference. The mediated settlement conference shall be held during the discovery period unless the Court specifically orders otherwise.

(b) Scheduling the Mediated Settlement Conference. The mediated settlement conference may be held at any place agreed to by the parties and the mediator, or as otherwise determined by the mediator if such agreement is not reached within a reasonable period of time before the scheduled mediation. Because of space limitations, the federal courthouses are generally not available for mediated settlement conferences. After conferring with the attorneys for the parties regarding scheduling matters, the mediator shall determine the place and time of the conference (within the period established by these rules), and give notice to the parties.

(c) Submission of Position Papers to Mediator. Position papers or other written mediation statements may be submitted to a mediator in the parties' discretion or upon the mediator's request. As a general rule, any such paper or statement shall be reasonable in length given the nature and scope of the matter being mediated, and should be submitted within a reasonable period of time before the scheduled date of the mediated settlement conference. If considered "confidential" by the submitting party, any such paper or statement shall be designated as such. The purpose of these submissions is to help the mediator become familiar with the assertions of the parties, and the parties may agree to the submission of additional information if they believe the information will facilitate the mediated settlement conference. The mediator may charge the submitting party for the time spent reviewing such papers or statements, subject to any separate agreement by the parties to otherwise divide such charge. In the mediator's discretion, such charge may be included on a confidential or other separate invoice to the party or parties being invoiced for the same.

(d) Duties of Parties, Representatives, and Attorneys. The following persons shall be physically present at the entire mediated settlement conference unless otherwise agreed to by the parties and consented to by the mediator:

(1) Individual parties; an officer, manager, or director of a corporate or other entity party, such representative to have full authority to negotiate on behalf of the entity and to approve or recommend a settlement (although another authorized representative with such authority may be available by telephone or other electronic means), unless the Court by order or all parties and the mediator by consent agree to another arrangement for participation by a representative with such authority;

(2) At least one attorney of record for each represented party;

(3) A representative of the insurance carrier for any party against whom a claim is made. The representative must have full authority to settle the claim (although an additional representative with such authority may be available by telephone or other electronic means), unless the Court by order or all parties and the mediator by consent agree to another arrangement for participation by a representative with such authority. Such representative must be a person other than the carrier's outside counsel; and

(4) Where any party is a governmental or other public entity, by an employee or agent who is not such party's outside counsel and who has full authority to settle the claim. Where any settlement with such a governmental or other public entity must subsequently be approved by a governing body, the authorized representative who is present may enter into a settlement agreement containing such a condition. Any report of mediator shall reflect that such a condition to settlement exists.

Upon reaching a settlement agreement at a mediated settlement conference, the parties shall forthwith reduce the agreement to writing and prepare a stipulation of dismissal, consent judgment or other appropriate filing for presentation to the Court.

(e) Authority of the Mediator. The mediator is authorized by these rules to exercise control over the mediated settlement conference and to direct all proceedings therein. The mediator is specifically authorized to meet or consult privately with any party or their counsel before, during or after the conference, and to take such other action as allowed by these Local Rules or pursuant to any applicable North Carolina court rules governing mediators and court-ordered mediations.

(f) Duties of the Mediator. At the beginning of the mediated settlement conference, the mediator shall describe the following matters to the parties:

(1) The process of mediation,

(2) The differences between mediation and other forms of conflict resolution,

(3) The costs of the mediated settlement conference,

(4) The fact that the mediated settlement conference is not a trial, the mediator is not a judge, and the parties retain their right to trial if they do not reach settlement,

(5) The circumstances under which the mediator may meet alone with either of the parties or any other person,

(6) The conditions under which communications with the mediator will be held in confidence during the conference,

(7) The inadmissibility of negotiating statements and offers at trial,

(8) The fact that the Court will not permit parties in other litigations to conduct discovery regarding the mediation in this case,

(9) The duties and responsibilities of the mediator and the parties, and

(10) The fact that any agreement reached will be reached by mutual consent of the parties.

The mediator may recess or suspend the conference at any time and set a schedule for reconvening. It is the duty of the mediator to determine if an impasse has been reached or mediation should for any reason be terminated. The mediator shall then inform the parties that mediation is terminated.

(g) Agreement to Modify Mediation Procedures. By agreement of the parties and with the consent of the mediator, the parties may modify the mediation procedures described in these rules, except that the parties may not alter time limitations set by these rules or by order of the Court.

(h) Sanctions for Failure to Appear. If a party or other person is required but fails to attend a mediated settlement conference without good cause, the Court may impose on that person or party any lawful sanction, including, but not limited to, imposition of attorney's fees, mediator's fees, and expenses of persons incurred in attending the conference.

(i) Inadmissibility of Negotiations.

(1) Evidence of statements made and conduct occurring in a mediated settlement conference or otherwise in communications with a mediator during the mediation process, whether attributable to a party, the mediator, or a neutral observer present at the conference (e.g., mediator candidate, interpreter, person studying dispute resolution), shall not be subject to discovery and shall be inadmissible in any proceeding in the action or other civil actions on the same claim, except:

(i) In proceedings for sanctions under these rules;

(ii) In proceedings to enforce or rescind a settlement of the action;

(iii) In disciplinary proceedings before the Court, the North Carolina State Bar, or any agency established to enforce standards of conduct for mediators; or

(iv) In proceedings to enforce laws concerning juvenile or elder abuse.

(2) No evidence otherwise discoverable shall be inadmissible merely because it is presented or discussed in a mediated settlement conference.

(3) No mediator or neutral observer present at a mediated settlement conference 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 in any civil proceeding for any purpose, including proceedings to enforce or rescind a settlement of the action, except to attest to the signing of any agreements, and except proceedings for sanctions under these rules, and disciplinary proceedings before this Court, the State Bar, or an agency established to enforce standards of conduct for mediators, and proceedings to enforce laws concerning juvenile or elder abuse.