Due to COVID-19, court-ordered mediations under DRC programs shall be conducted remotely. If the mediator, all parties, and any other persons required to attend agree to waive the requirement to conduct a remote mediation, and comply with all federal, state and local safety guidelines that have been issued, they may conduct the mediation in person. Rule 4 of the MSC, FFS and Clerk Rules and Rule 5 of the DCC Rules provide that a mediation shall be conducted via electronic means. With the agreement of all parties, and ability to comply with safety guidelines, the parties may conduct the mediation in person. The parties may also seek an order from the court to conduct the mediation in person. If all parties do not consent to hold the mediation in person, and absent an order from the court, the matter shall be held through remote technology.
*Nothing in the Rules prohibits a mediator from establishing stricter health requirements for a mediation conference.
*Any mediation conducted in person shall be done in strict compliance with all executive orders and social distancing requirements. All parties to the mediation shall use appropriate social distancing practices and safety procedures. The NCDRC recommends all parties follow the three W’s: wear a cloth face covering, wait 6 feet apart and avoid close contact, and wash your hands often. Please stay informed of all local and state policies that are in place to ensure best practices are followed.
The Commission appreciates that mediators sometimes need assistance in interpreting the Standards of Professional Conduct for Mediators or program rules and applying them to ethical or other dilemmas that may arise in the course of a mediation practice. In an effort to provide guidance, the Commission has adopted its Advisory Opinion Policy. The Policy provides:
- For mediators to contact Commission staff, when time is of the essence, to obtain informal guidance in response to Standards and rule interpretation questions. The discussion and any guidance provided will be logged in for reference in the event should be complaint is filed; and
- For mediators to seek formal Advisory Opinions from the Commission in response to ethical or rule interpretation questions/dilemmas that have arisen in connection with mediation practices. Advisory Opinions issued to date are posted on this website.
Summary of Advisory Opinions
|Advisory Opinion Number||Summary of Advisory Opinion|
|40(2020)||A mediator may not act as a parenting coordinator for the parties after conducting a mediation involving the same parties out of the same cause of action. Under Standard 7(c), Conflicts of Interest, a mediator is prohibited from engaging in a professional relationship with one or more of the parties to a mediation, after a mediation has concluded, if the new professional relationship involves the same dispute, is an action closely related to the dispute, or is an outgrowth of the dispute. The relationship is considered professional when the person providing services obtains confidential or private information from the party requesting services. The DRC continues to uphold the premise that mediators should not be in a position where they could benefit or profit from knowledge they learned in mediation.|
|39(2018)||The Dispute Resolution Commission's Program Rules and Standards of Conduct place an obligation on mediators to actively and effectively manage their cases. As part of this duty, the mediator is required to report on the outcome of each case assigned to him/her by timely filing a Report of Mediator. In addition, the mediator shall conduct their conferences prior to the deadline for completion set out in the court's order and shall not knowingly contract for mediation services that cannot be timely delivered.|
|38(2018)||Pursuant to N.C.G.S. § 7A-38.4A, Settlement procedures in district court actions, evidence of statements made and conduct occurring in a mediated settlement conference shall not be admissible in the action or other civil actions on the same claim, subject to a few narrow exceptions. A claim for attorney fees does not fit within a named exception, or be required to disclose their notes from the mediation on a claim of attorney’s fees.|
|37(2018)||Pursuant to MSC Rule 2(a), the plaintiff’s attorney, or any party may file the designation of mediator form with the court. A mediator, or someone acting on their behalf, may not complete, sign, or file Designation forms with the court. This rule protects the court and mediators from potential allegations made by a party that the party was not consulted prior to the designation of the mediator. Although this AO specifically addresses a question raised by superior court staff and the actions of a superior court mediator, it also applies to the Family Financial Settlement program and the Clerk Mediation Program.|
|36(2018)||Under Standard 7(h), a mediator may sponsor a CME or CLE program or Speaker and have her contribution acknowledged on a sign or on registration and/or program materials. A mediator may also sponsor a dinner or open bar at a CME or CLE event and have their contribution acknowledged on a sign or on registration and/or program materials, so long as the sponsorship directly relates to an educational benefit that is available to the public. However, a dinner or open bar event with a limited or restricted guest list, or by personal invitation only, is akin to a gift and would violate the bright line gift rule.|
|35(2018)||A mediator has an obligation to raise the issue of settlement authority in a situation where an attorney comes to mediation without his client and requests that the conference proceed. In the situation described, the defendant notified his attorney at the last minute that he would not attend the conference. The defendant’s attorney told the mediator and opposing counsel that, though his client was absent, he wanted to go ahead and discuss the case. The conference proceeded and an agreement was reached which defendant’s attorney signed on behalf of his client. Neither the opposing counsel nor the mediator asked the defendant’s attorney whether he was authorized by his client to sign the agreement. Later, the defendant rejected the agreement, maintaining that his attorney was not authorized to sign for him. Best practice in this situation would have been for the mediator to insist that the attorney get his client on the telephone or to have him ask the defendant to send an email, text, or other written communication authorizing the attorney to discuss and settle the matter on the defendant’s behalf. If an attorney refuses to disclose the fact that he lacks settlement authority to the other side, the mediator should encourage the attorney to disclose and, if he continues to refuse, may determine to recess or terminate the conference pursuant to Standard 8, Protecting the Integrity of the Mediation Process.|
|34(2018)||A mediator may not conduct two mediated settlement conferences simultaneously. To do so violates Standard 7 and creates an inherent conflict of interest. In conducting both conferences simultaneously, the mediator appears to be promoting his own financial interests over the interests of the parties, particularly if the mediator is charging his full hourly rate and administrative fee for each. Conducting two conferences at the same time also raises concerns about mediators prolonging conferences unduly (Standard 7(g)) and confidentiality (Standard 3).|
|33(2016)||Under Standard 7(h), a mediator may not distribute mouse pads with contact information thereon to existing or potential clients in expectation of referrals, as an advertisement of his/her services, or as a “thank you” for selecting him/her as a mediator, irrespective of the value of the mousepads. The exception to Standard 7(h) is very narrow, only permitting a mediator to give de minimus offerings such as snacks, sodas, cookies, or lunches during the mediation to further the process or to show respect for cultural norms.|
|32(2016)||A pro se non-English speaking party to a mediation needs the services of a language interpreter as an accommodation and may bring a family member or friend to the mediation to act as her interpreter. The accommodation is necessary to ensure that the party can comprehend and effectively participate in the mediation as contemplated by Standard 4(c). The mediator should clarify that the interpreter will relate all that is said as completely as possible, and not just summarize. The mediator may recess the mediation if s/he is not satisfied that the interpreter can provide reasonable assurances of the party’s understanding of the process. To alert the court to the language access issue, it is recommended as a best practice that the mediator include a statement at the end of the Report of Mediator similar to the one set out in the advisory opinion.|
|31(2015)||In a case where one party is represented by counsel and one is pro se, the mediator may not prepare an agreement for the parties to sign. In addition, when an attorney drafts a proposed settlement agreement for the pro se party to sign at the conference, the opinion sets out certain information that the mediator shall convey to the pro se party prior to his/her signing the agreement. Consistent with Standard 8, the opinion also requires the mediator to read any proposed agreement and raise questions with the party(ies) and or attorney if the agreement does not include the terms discussed in the presence of the mediator or are misstated, and facilitate their discussions and negotiations to reach a complete agreement.|
|30(2014)||Mediator was subpoenaed to testify and did testify in an action to enforce a mediated settlement agreement reached at mediation. The parties did not object to the testimony and the court did not compel the testimony. The mediator did not alert the court to Standard 3 and his duty to preserve confidentiality. The Commission reaffirmed its opinion formerly set out in its Advisory Opinion 03(2001) and stressed that mediators in court-ordered mediations and certified mediators in all mediations, unless exempted by Standard 3, should not voluntarily testify as to statements made or conduct occurring at a mediation. Instead, a mediator should alert the court by motion or otherwise of his/her duty of confidentiality under Standard 3. It is irrelevant that the parties do not object to the testimony. The mediator in this case was sanctioned by the Commission.|
|29(2014)||This opinion discusses the duty of the mediator to define and describe the separate and distinct concepts of confidentiality and inadmissibility at the beginning of the mediation. Mediator mediated a civil superior court case in which the plaintiff alleged sexual harassment by the defendant. Plaintiff was also the complaining witness in a criminal action against the defendant arising out of the same facts. G.S. 7A-38.1(l) provides that “evidence of statements made and conduct occurring in a mediated settlement conference…shall not be subject to discovery and shall be inadmissible in any proceeding in the action or other civil actions on the same claim…” (emphasis added). Participants in a mediated settlement conference in a civil case may be required to testify in a criminal matter. Although the mediator is under a duty to discuss confidentiality and inadmissibility, any discussion about how these concepts apply to the parties and their conversations in mediation is the responsibility of the attorneys for the parties.|
|28(2013)||At the conclusion of a successful mediation, a divorcing couple, both of whom are pro se ask the mediator to prepare a binding agreement for their signatures, and further, to file a court action on their behalf to incorporate their agreement into a consent order. Standard 6 of the Standards of Professional Conduct for Mediators provides that a mediator “shall limit himself/herself solely to the role of mediator, and shall not give legal or other professional advice during the mediation.” The opinion holds that the mediator may not prepare an agreement or file an action with the court because both activities are the “practice of law” under N.C. Gen. Stat. 84-2.1, and to do either would be a violation of Standard 6. This opinion also calls attention to N.C. State Bar 2012 Formal Ethics Opinion 2 which held that the attorney mediator could not prepare a binding business contract for two pro se parties at the conclusion of a successful mediation because the mediator had a “non-consent able” conflict of interest, and would improperly practice law if he drafted a contract requested by the parties.|
|27(2013)||Pro se wife in an equitable distribution case informed her court- appointed mediator during the scheduling process that she was unable to pay his fees. Mediator insisted she must pay and when she refused, contacted her husband and sought payment of Wife’s share of the mediator fee from Husband; told the judge that he believed she could pay and that the parties were being unreasonable; failed to schedule a mediation; and upon Wife’s allegation of the mediator’s bias against her, withdrew from the case under Standard 2(c)(1). Once a mediator learns of a party’s claim of inability to pay, the mediator should advise them of their right to file Form AOC-CV-828, Petition and Order for Relief From Obligation To Pay All Or Part of Mediator’s Fee in Family Financial Cases. Thereafter s/he should have no more communication about inability to pay and should schedule the mediation. This opinion holds that mediator’s actions were inconsistent with FFS Rule 7(e) and FFS Rule 6(a)(2) in that he failed to schedule the mediation, and with Standard 3, Confidentiality, (conversations with husband and judge), Standard 2, Impartiality, (mediator took a position in favor of the husband), and Standard 7, Conflicts of Interest, (mediator mixed his own financial business interests with the business of the parties) and became overly focused on his fee.|
|26(2013)||Mediator learns that an appeal has been filed in a case that s/he has been assigned to mediate. The party filing the motion insists that the appeal divests the trial court of jurisdiction and stays the mediation. The opposing party wishes to proceed with the mediation. The Commission advises the mediator that it is ultimately the responsibility of the parties to seek clarification from the trial court in this instance. However, if they take no action, the mediator should seek guidance from trial court staff as to whether the mediation is stayed upon appeal of the case or it may proceed.|
|25(2013)||At a court-ordered conference, a party objects to a corporation attending without legal counsel. The Commission advises mediators to avoid taking positions in disputes over attendance. Absent an order of the court dispensing with mediation, a mediator should conduct the conference and advise the parties to direct any questions about attendance to the court. In simply conducting the conference, an attorney mediator is not facilitating the unauthorized practice of law.|
|24(2013)||At a court-ordered conference, a party objected to the attendance of an out-of-state attorney when the attorney had not been admitted pro hac vice. The Commission advises mediators to avoid taking positions in disputes over attendance. Absent an order of the court dispensing with mediation, a mediator should conduct the conference and advise the parties to direct any questions about attendance to the court. In simply conducting the conference, an attorney mediator is not facilitating the unauthorized practice of law.|
|23(2012)||Program enabling legislation provides for mediator testimony at State Bar disciplinary hearings regarding an attorney’s conduct in mediation. However, where no subpoena is involved, the Commission does not read the legislation broadly to permit mediators to answer a State Bar investigator’s questions in preliminary stages of an investigation. A note following the Opinion addresses situations where an attorney-mediator is him or herself the subject of the investigation.|
|22(2012)||Standard 3 of the Standards of Professional Conduct for Mediators places a duty of confidentiality on mediators. Unlike their mediator, the parties and their counsel are not bound by Standard 3 and are free to talk to the public or press about statements or conduct occurring in the mediation. If the parties want to negotiate their own confidentiality agreement, the mediator should assist them.|
|21(2012)||When a mediator is asked by one party to a mediation to review documents in advance of the conference, a mediator may charge for the time spent in that review. However, to maintain neutrality, the mediator should obtain permission of all parties before undertaking the review, even if one party offers to pay the entire fee associated with the review. Mediators are urged not to charge for routine document review, such as short case summaries or briefs.|
|20(2011)||An attorney or non-attorney mediator who is also a notary public may notarize an agreement resulting from a mediation that s/he conducted.|
|19(2011)||Party selected mediators may charge an advance deposit for their services mediating, but may not postpone or refuse to conduct a mediation when a party is unable to pay the deposit. A party should never be denied the opportunity to mediate because s/he cannot pay some or all of the mediator’s fee.|
|18(2011)||Mediator was disciplined privately by the Commission for neglecting his case management responsibilities, including failing to complete his Reports of Mediator fully and to file them timely. Opinion stresses the need for mediators to take their case management responsibilities seriously and to fulfill all their reporting obligations.|
|17(2010)||A mediator is not precluded from serving as an arbitrator in a case that s/he has previously mediated. This Opinion distinguishes the situation where a mediator transitions to the role of arbitrator from the situation where a mediator becomes a fiduciary. Opinion 15(2008) addresses the latter situation and advises that mediators should not solicit or accept an appointment as a fiduciary when that appointment flows from the mediation process. Opinion 17(2010) provides guidance on making the transition from mediator to arbitrator.|
|16(2010)||During a caucus session held during the mediation of a family financial dispute, the wife and her attorney told the mediator confidentially that they had intentionally failed to disclose the existence of valuable marital asset on their inventory affidavit. The mediator asks whether the mediation can continue in the face of this nondisclosure. The Opinion provides that, in these circumstances, the best practice would be for the mediator to engage the offending party and encourage her and her attorney to disclose the asset. If they refuse, then the mediator must terminate the session and withdraw from the mediation without violating the requirements of confidentiality.|
|15(2008)||During a Clerk referred mediation of a dispute over who should serve as an estate’s administrator/fiduciary, the mediator agreed to allow the parties to appoint him as the administrator/fiduciary. The Commission believes that soliciting or even accepting such an appointment at the insistence of the parties, can create the impression that the mediator manipulated the mediation process with the ultimate goal of furthering his or her own interests. A mediator should remain focused exclusively on his or her role as mediator and should not solicit or accept such an appointment.|
|14(2008)||This Advisory Opinion addresses a proposal to form a panel of volunteer mediators willing to serve pro bono in mediations involving clients of legal services organizations. The Opinion discusses fees, including disclosure of waiver and negotiation of the shifting of payment to another party, both in the context of service on the proposed panel and in the context of any other mediation where a mediator has agreed to serve pro bono or for a reduced fee relative to at least one party.|
|13(2007)||A mediator should not compromise his/her neutrality by overtly accusing a party of being untruthful during mediation or by using language tantamount to such an accusation. A mediator should not confront a party in a hostile or abusive manner. Such actions compromise the mediator’s neutrality. A mediator should not use any profane language during mediation even if the parties or their lawyers are using such language.|
|12(2007)||A court-appointed mediator distributed a copy of an agreement to mediate and asked the parties to sign prior to their mediated settlement conference. The agreement contained terms that modified and even ran counter to program rules and the Standards of Professional Conduct for Mediators. The Commission determined that a court appointed mediator may not, through the use of an agreement to mediate, modify program rules or the Standards.|
|11(2007)||Mediator failed to reduce the terms of an agreement reached in mediation to writing in accordance with MSC Rule 4(a)(2) and 4(c). Moreover, mediator should not have reported to the Senior Resident Superior Court Judge in his Report of Mediator that the case had been settled when there was no writing. Mediator should have accompanied the parties on their site visit to ensure that all the details were ironed out and then assisted them in reducing their agreement to writing.|
|10(2006)||MSC Rule 4(a)(1) addresses who shall attend a conference. Pursuant to Rule 6(a)(1), the mediator has discretion to determine who else may be present. If there is a dispute between the parties regarding whether an individual may attend, it is best practice for the mediator to try and mediate the matter first. If the mediator cannot help the parties reach an agreement on the issue, then the mediator should make a determination as whether the individual in question may attend.|
|09(2006)||The mediator has a duty to warn parties when confidentiality is breached and parties are at financial or other risk because of the breach. The situation which gave rise to this opinion involved financial information that was removed from a mediator’s laptop during service and that could not be relocated and restored.|
|08(2005)||It is the duty of the mediator, and not that of the parties, to schedule the mediation within the timeframe established by the court for completion.|
|07(2004)||Upon learning that a bankruptcy petition has been filed in a case, a mediator shall report to the court that the bankruptcy has been filed and shall request that the judge who referred the matter to mediation advise the mediator as to whether s/he should hold the conference.|
|06(2004)||A mediator who conducts a mediation for a couple that is separating may not thereafter represent either the husband or wife in divorce proceedings.|
|05(2003)||As long as he or she does not reveal any confidential information, a mediator may, following an impasse, continue to assist a party or parties who contact the mediator in an effort to revive discussions or to clarify something that was said at mediation. If the mediator believes that the party who contacted him/her has a nefarious motive, the mediator is not obligated to respond or to involve him or herself further in the matter.|
|04(2003)||It is discretionary with the individual mediators as to how long they retain mediation files, but mediators should consider confidentiality concerns in making decisions regarding file retention.|
|03(2001)||Confidentiality is integral to the success of the mediation process. Mediators should be vigilant in their efforts to preserve confidentiality and should not give affidavits or testify in court as to statements and conduct occurring in connection with a mediation unless the communication is permitted by an exception set forth in a statute or Standard.|
|02(2000)||This AO is temporarily suspended until such time the attendance rules revert to physical attendance.
It is preferable for parties to physically attend a mediation conference rather than participating by telephone. A mediator should not waive or modify the attendance requirement absent some compelling reason to do so.
|01(1999)||Once a case has been ordered to mediation, a mediator has a duty to assemble the parties and hold the conference prior to the deadline for completion. A mediator may not simply report an impasse based on a representation by the parties that the case cannot be settled.|