The North Carolina Court of Appeals has provided a mediation program since 2002 allowing parties to participate in mediation of cases pending before the Court of Appeals. The mediation program has been very successful, since nearly half of the cases in which the parties have agreed to attend mediation are resolved.
Appellate mediation is a voluntary program that allows parties to an appeal to submit their dispute for mediation by an informed, neutral person in a confidential setting. Several judges on the Court of Appeals have received mediation training, and they provide mediation services at no charge in eligible cases if all parties agree to mediation. The focus is on encouraging settlement and reaching an agreeable disposition of the appeal among the parties. Civil cases are eligible for mediation, except for termination of parental rights cases, juvenile cases, and cases addressing registration or monitoring of sex offenders. A case will not, however, be assigned for mediation unless all the parties to the appeal have agreed to the mediation. If a case is assigned to mediation, the appellant will receive a 60-day extension of time to file the appellant’s brief to allow time for the mediation session to be held before the brief must be filed.
For additional information about N.C. Court of Appeals mediation services, please contact firstname.lastname@example.org.
Agreement to MediationWhen the record on appeal is docketed at the Court of Appeals, the Clerk of the Court of Appeals mails with the docketing notice a "Consent to Appellate Mediation Form and Motion for 60-day Extension of Time” (“Consent Form”) in all cases eligible to participate in the Court's mediation program. The Consent Form is mailed to counsel for all parties (pro se parties are not eligible for mediation), who must complete and return the form within 15 days after docketing of the record on appeal and serve on all other counsel. (An example of the Consent Form is available here.)
Other than the 60-day extension of time for filing the appellant’s brief which will be granted upon a proper request on the Consent Form, participation in mediation does not delay the printing of the record on appeal or otherwise suspend the deadlines for filing briefs, as set forth in the Rules of Appellate Procedure. If the mediation is not completed within the time allowed by the 60-day extension of time, the parties are responsible for filing with the Court of Appeals a separate motion showing good cause for an extension of time to extend any deadline that would otherwise run while mediation proceeds.
Selection of MediatorIn addition to consenting to the mediation process, the parties must consent to the type of mediator. There are three options parties may choose:
- Current Court of Appeals Judge (Current Judge): All judges who do mediation have been trained as mediators. If the parties choose to use a Current Judge, that judge will be assigned on a rotating basis from the list of trained judge-mediators, will serve at no fee to the parties, and thereafter will not participate in any other capacity in the appeal.
- Emergency Recalled Court of Appeals Judge (Recalled Judge): Recalled Judges who participate in the Court of Appeals mediation program have been trained as mediators. If the parties elect to employ a Recalled Judge, that person will serve for a flat fee of $400.00 per day or part thereof, and thereafter will not participate in any other capacity in the appeal. Unless otherwise agreed to by the named parties, the Recalled Judge’s mediation fee shall be paid in equal shares by the parties. For purposes of division of fees, multiple parties shall be considered one party when they are represented by the same counsel. Parties obligated to pay a share of the fees shall pay them equally. Payment shall be due upon completion of the conference.
- A privately employed mediator (Private Mediator): If the parties elect to employ a private mediator, that person's fee will be set by agreement between the parties and the mediator. Once the parties consent to mediation and a mediator has been designated, the mediator should promptly schedule and conduct the mediation. Within 5 days after the mediation, the mediator must prepare and deliver to the Clerk of the Court of Appeals the Report of Mediator form.
Mediation StatementThe parties shall each supply a “Mediation Statement” to the mediator at least 2 days before the scheduled conference by mail or email. The Mediation Statement should be no more than 4 pages and should include: (1) a brief history of the litigation, (2) the history of any efforts to settle the case, including the most recent offer or demand, (3) a summary of the parties' legal positions, (4) the present posture of the case, including any related litigation in the trial tribunal or other pending appeals, and (5) any proposals for settlement. Do not file the Mediation Statement in the office of the Clerk of the Court of Appeals. The parties are not required to serve the mediation statement on other parties. If any party does not want the mediation statement or any information in the statement to be shared with opposing parties, that party may inform the mediator of this request and should clearly note on the Mediation Statement that it is confidential.
AttendanceThe following persons shall attend the mediated settlement conference:
(i) All individual parties;
(ii) Any party that is not a natural person or a governmental entity shall be represented at the conference by an officer, employee or agent who is not such party's outside counsel and who has been authorized to decide on behalf of such party whether and on what terms to settle the action or who has been authorized to negotiate on behalf of such party and can promptly communicate during the conference with persons who have decision-making authority to settle the action; provided, however, if a specific procedure is required by law (e.g., a statutory pre-audit certificate) or the party's governing documents (e.g., articles of incorporation, bylaws, partnership agreement, articles of organization or operating agreement) to approve the terms of the settlement, then the representative shall have the authority to negotiate and make recommendations to the applicable approval authority in accordance with that procedure;
(iii) Any party that is a governmental entity shall be represented at the conference by an employee or agent who is not such party's outside counsel and who has authority to decide on behalf of such party whether and on what terms to settle the action; provided, if under law proposed settlement terms can be approved only by a board, the representative shall have authority to negotiate on behalf of the party and to make a recommendation to that board.
(b) Insurance Company Representatives. A representative of each liability insurance carrier, uninsured motorist insurance carrier, and underinsured motorist insurance carrier which may be obligated to pay all or part of any claim presented in the action. Each such carrier shall be represented at the conference by an officer, employee or agent, other than the carrier's outside counsel, who has the authority to make a decision on behalf of such carrier or who has been authorized to negotiate on behalf of the carrier and can promptly communicate during the conference with persons who have such decision-making authority.
(c) Attorneys. At least one counsel of record for each party or other participant, whose counsel has appeared in the action.
If any of the persons listed above are unable to attend the mediation in person, counsel should inform the mediator and other parties promptly upon becoming aware of the absence. The mediation may proceed if all parties agree to the absence and the mediator approves the absence. Attendance means being physically present, so if any of the persons required to attend wish to participate by telephone, this must also be approved in advance by the other parties and mediator.
Location of MediationThe mediation, if conducted by a Current Judge, will be held in the Court of Appeals Building in Raleigh unless the parties and the mediator agree otherwise. Private Mediators may use the Court of Appeals facilities for the mediation when available.
Confidentiality of MediationAll mediation sessions are confidential. All information shared during the mediation and the Mediation Statement will be kept confidential, and will not become part of the record on appeal. Such information will not be disclosed to others, including the judges on the panel if the appeal moves forward. Neither the parties, counsel nor the mediator will disclose any statements, discussions, or actions taken in the mediation, in later briefs, oral arguments or in any other communication to the Court, except to the extent necessary to complete the Report of Mediator Form.
There shall be no stenographic, audio, or video recording of the mediation process by any participant. This prohibition precludes recording either surreptitiously or with the agreement of the parties.
After the MediationIf the mediation is successful, the appellant is responsible for moving to dismiss both the appeal and the case in the trial court, if necessary.
If the mediation is unsuccessful, the appeal of the case will proceed on its normal schedule, as set forth in the Rules of Appellate Procedure.
If the mediation is conducted by private mediator, within 5 days after the mediation, the mediator must prepare and deliver to the Clerk of the Court of Appeals the Report of Mediator form.