Local Rule LCvR 16.3: RULES APPLICABLE TO MEDIATION OR ADR

LCvR 16.3 RULES APPLICABLE TO MEDIATION OR ADR

(a) Time for Proceeding. The Court favors the use of ADR, ordinarily in the form of a mediated settlement conference, for the efficient and orderly resolution of civil cases. Accordingly, in the Certificate of Initial Attorney's Conference, the parties must indicate their opinion(s) regarding the usefulness of ADR, the preferred method of ADR, and the most advantageous time to commence ADR. If the parties fail to submit, or cannot agree on, a proposed ADR method, a mediated settlement conference will be selected as the default. The presiding United States Magistrate Judge or other judicial officer will, in the Scheduling Order or an ADR Order issued shortly thereafter, select the ADR method and schedule the deadline for its completion after considering counsel's responses in the Certificate of Initial Attorney's Conference.

(b) Rules for Proceeding. Upon entry of an ADR Order, the case shall proceed as follows:

(1) Rules Governing Mediation. If a mediated settlement conference is ordered, it shall be governed by the Rules Governing Mediated Settlement Conferences in Superior Court Civil Actions promulgated by the North Carolina Supreme Court pursuant to N.C. Gen. Stat. § 7A-38.1 (the "Mediation Rules"), and by these Local Rules.

(A) Interpretation of State Court Terms. Where the Mediation Rules refer to "Senior Resident Superior Court Judge" and "Administrative Office of the Court," this shall mean "judicial officer" and "Clerk of Court" of the United States District Court, respectively.

(B) Appropriate Facilities. Rule 3(a) of the Mediation Rules is modified to permit the mediated settlement conference to be held in a facility as agreed to by the parties or allowed by the Court.

(2) Rules Governing Alternative ADR Proceeding. If an alternative ADR procedure is ordered, the ADR proceeding shall be governed by the Mediation Rules, these Local Rules, and by such other procedural rules submitted by the parties and approved by the judicial officer. In addition to rules regarding the actual proceeding, the rules submitted by the parties must include provisions setting a deadline for completion of the proceeding; the location of the proceeding; pre-proceeding submissions; and the method for selecting and compensating a mediator, evaluator, or other neutral person to preside over the proceeding.

(3) Impact on Federal Law. Nothing in this Local Rule overrides the Federal Arbitration Act or any other provision of the United States Code.

(4) Exceptions to Rules. The judicial officer may, either sua sponte or on a party's motion, permit exceptions or deviations from the Mediation Rules or these Local Rules.

(c) Supplemental Rules for Mediated Settlement Conferences. In addition to the Mediation Rules, the following Rules shall also apply to mediated settlement conferences in the Western District:

(1) No Record Made. No record shall be made of any ADR proceedings.

(2) Attendance. All mediated settlement conferences must be conducted in person, unless leave is otherwise granted by the mediator.

(3) Mediator's Report of Outcome. The mediator's report required by the Mediation Rules must be issued within seven (7) days of the conclusion of the Mediated Settlement Conference. The mediator may submit the report on a report form provided by the Clerk of Court, or by using the mediator's own letterhead or individually developed mediation report form. The mediator may file the report electronically or by conventional means.

(d) Judicial Settlement Conference.

(1) Mandatory Consideration. The judicial officer to whom a case is assigned may, at any time, order the parties to participate in a settlement conference to be convened by the Court. Any party may also request a judicial settlement conference.

(2) Mandatory Attendance by Representatives with Full Authority to Effect Settlement. A person with full authority to settle all pending claims must attend the settlement conference and, for purposes of this Rule, the "person with full authority to settle" shall not be the attorney. Recognizing that governmental entities may not be able to comply with such requirement, government attorneys must bring as much binding authority to settle as is feasible under the circumstances. Telephonic attendance by a representative with full settlement authority may be permitted by the Court on a case-by-case basis.

(3) Presiding Judicial Officer. Usually, any judicial officer of the district other than the judicial officer to whom the case is assigned for disposition may preside over a judicial settlement conference convened by the Court. The judicial officer to whom the case is assigned for disposition may, in such judicial officer's discretion, preside over such conference.