Court-Ordered Arbitration and Mediation
What is court-ordered arbitration?
Arbitration is an informal trial held before a neutral court official called an arbitrator. Compared to a regular trial, arbitration is intended to be an easier, quicker, and less expensive way to resolve disputes. At the arbitration hearing, each side has the opportunity to tell his or her side of the story and to present witnesses and documents. After the evidence is presented, the arbitrator, like a judge, will make a decision about the case. The arbitrator’s decision can give parties a realistic idea of the outcome of their case. If neither party appeals the decision, it will be binding, like an order by a judge. However, a party unhappy with the arbitrator’s decision can request a new trial before a judge.
What cases are sent to court-ordered arbitration?
Court-ordered arbitration is not yet available in every county in North Carolina. In counties with an arbitration program, every civil case that is a dispute about money filed in the District Court, with a claim for $25,000 or less, is ordered to arbitration. This includes cases appealed from small claims court to District Court. You, or your attorney if you have one, will receive a notice in the mail if your case is assigned to arbitration. Be sure to notify the clerk of superior court in the county where the case is filed if your mailing address changes while your case is pending.
What types of cases are not sent to arbitration?
Cases not eligible for arbitration include family law cases such as divorce, child custody, and child support; domestic violence; guardianship; class actions; cases involving title to real estate; wills and estates; “special proceedings” decided by the clerk of court; and cases in which a party is requesting a court order setting requirements other than the payment of money, such as an injunction or temporary restraining order. Eviction cases are also not subject to arbitration.
What am I required to do if my case is sent to arbitration?
If your case has been sent to arbitration by the court, you must attend the hearing, participate in good faith, and pay your share of the $100 arbitration fee. The fee is divided equally among the parties and must be paid to the clerk of court.
Can I be excused from arbitration?
If your case is assigned to arbitration, you must participate unless either a judge excuses you or both parties agree not to go to arbitration using this form. If you believe your case should not go to arbitration and the other party does not agree, you can file a motion with the clerk of court asking the court to remove the case from arbitration. You must show either that the case is not eligible for arbitration or that there is a compelling reason to exempt your case. You must file the motion with the clerk of court and serve copies of the motion on all other parties to the case at least 10 days before the date set for the arbitration hearing. You are responsible for contacting the Trial Court Coordinator in your county to schedule the motion for hearing before a judge.
How do I file and serve motions and other documents?
To file a motion or other document with the court, you can visit the clerk of superior court’s office in person or mail the original to the clerk’s office in the county where the case is pending. The clerk must receive the motion or document before the filing deadline. You must also serve copies on all parties in the case. You can serve other parties in the case by hand-delivering or mailing copies of the document to each party, or to the attorney if a party is represented.
Do I need an attorney?
Individuals can choose to hire an attorney or represent themselves at arbitration. Corporations are required to be represented by an attorney, unless the case is on appeal from small claims court.
Who can be an arbitrator?
Each county’s court keeps a list of qualified arbitrators. The court will appoint an arbitrator for your case. Each arbitrator on the list is an attorney who is in good standing with the North Carolina State Bar, has been licensed to practice law for at least five years, and has been licensed in North Carolina for at least two years. Each arbitrator on the list has also completed a training program and been approved by the Chief District Court Judge to serve in the county where the case is filed.
Who pays for the arbitrator?
There is a $100 fee for arbitration. You will be notified of this fee and the amount you owe in the “Notice of Arbitration Hearing.” You must pay this fee by taking the form to the cashier in the clerk of court’s office to pay your share. The clerk will accept cash, a cashier’s check, or a money order. If you do not pay, the fee will become a judgment against you. If you cannot afford to pay, you can file this form with the clerk of court asking to be found indigent.
eCourts Guide & File is available to help users prepare court documents online to file for Petition to Proceed as an Indigent.
When will the arbitration hearing be held?
You will receive a “Notice of Arbitration Hearing” informing you of the date, time, and location of the hearing. The court will schedule the arbitration hearing to occur within 60 days of the date the last pleading (complaint or answer) was filed in the case. When a magistrate’s order in a small claims case is appealed, the arbitration hearing is scheduled to occur no later than 60 days after the appeal is filed.
Where will the arbitration hearing be held?
Arbitration hearings are held in courtrooms or public meeting rooms in the county where the case is filed. The “Notice of Arbitration Hearing” will provide the address and room number. Arbitration hearings are open to the public.
How long does arbitration last?
Arbitration hearings are limited to one hour, which means that each side has up to 30 minutes to testify and present witnesses and evidence. The arbitration hearing may last longer if, at the hearing, the arbitrator determines that more time is needed to ensure fairness and justice to the parties.
Can the arbitration hearing be rescheduled?
A hearing may be rescheduled only by order of the court in the county where the case is pending. A motion to reschedule must be filed at least 24 hours before the scheduled arbitration hearing. The requesting party must show a strong and compelling reason to reschedule the hearing. If an emergency situation prevents you from attending your hearing, call the Arbitration Coordinator in your county immediately to explain your circumstances. You may be held responsible for the total cost of the arbitrator’s fee.
What happens if I do not attend the arbitration hearing?
If you do not attend the arbitration hearing and do not arrange for it to be rescheduled, the hearing may be held without you. The arbitrator can decide the case without hearing from you. The court may also order sanctions against you, which could include a fine for failing to attend the arbitration hearing.
Can I request a new arbitration if the hearing was held without me?
Yes, but you must show that your failure to appear at the original hearing was for a good reason and due to factors beyond your control. Rehearings are not often granted, so you should attend the original arbitration hearing if possible. You can request a rehearing by filing a motion with the clerk of court within 30 days after the arbitrator’s decision is sent to the parties. You can also request a new trial; see below for more information.
Can I talk with the arbitrator before the arbitration hearing?
No. You may only speak with the arbitrator during the arbitration hearing. If you have questions about the arbitration process, you can contact the Arbitration Coordinator in the county where the case is pending.
What should I do if I settle out of court?
If you and the opposing party are able to resolve the case before the arbitration hearing, you must file a consent judgment or dismissal with the clerk of court at least 24 hours before the scheduled arbitration hearing. If you do not, all parties will still be responsible for paying their portion of the arbitrator’s fee. You can appear at the hearing to have your agreement entered as the decision of the arbitrator.
How should I prepare for arbitration?
- Gather your evidence and witnesses. You can present physical evidence at the arbitration hearing, such as contracts, receipts, or photographs. You can also bring witnesses to testify for you. You must arrange for your witnesses to attend the hearing, either by having them agree to attend or by issuing a subpoena to require their attendance. If you do not have an attorney, a clerk of superior court can sign a subpoena for you. You should have your subpoenas issued as early as possible to ensure that there is time for service and advance notice to the witnesses. The arbitrator can view a written statement from a witness unable to attend only if all parties agree.
- At least 10 days before the arbitration, you must provide all other parties in the case a list of your witnesses, copies of all documents or exhibits you want to present at the hearing, and a short written statement describing the issues in the case and why you believe the arbitrator should rule in your favor. If you do not provide this information in advance, the arbitrator may not allow you to present evidence during the hearing. You should bring copies of all your materials to the hearing.
What happens at the arbitration hearing?
At the beginning of the arbitration hearing, the arbitrator will explain the ground rules. The arbitrator may ask you to give a brief opening summary of your case. Each side will have a chance to testify and present his or her witnesses, documents, and other evidence. Each side will have an opportunity to question the other side’s witnesses. The arbitrator may ask questions to help clarify each side’s story. After all of the evidence is presented, the arbitrator may ask you to give a short closing summary of your position.
When does the arbitrator make his or her decision and how do I get a copy?
The arbitrator may announce his or her decision, called an “award,” at the end of the arbitration hearing, or the arbitrator may take more time to consider the case. The arbitrator will issue a written award and file it with the court within three days after the arbitration hearing. The clerk of court will send a copy of the award to you, or to your attorney if you have one.
Can I settle out of court after I get the award?
Yes. There is a 30-day period between the time the award is sent to the parties and the time that it is finalized as a court judgment. Within that time period, you can settle your case, and the party that filed the lawsuit can file a dismissal with the clerk. If the case is dismissed before the end of the 30-day period, the award will not be entered into the court’s records. If the dismissal form is not filed, the award will be entered in the court’s records as a judgment, which can affect credit scores.
Can I get a trial if I don’t like the award?
Yes, unless you and the other party agreed in advance that the arbitrator’s award would be binding. You can request a new trial before a judge or jury, even if your case was previously decided by a magistrate. The arbitrator’s decision will not be considered at the trial and cannot be mentioned by either side. The arbitrator cannot be called to testify at the trial.
How can I request a new trial?
You can request a new trial by filing this form with the clerk of superior court within 30 days after the award is served on the parties. You must send copies of the request to all other parties in the case. You must pay an additional $100 filing fee when you request a new trial, unless the court decides that you are indigent. If you receive a more favorable decision from the judge or jury than you received from the arbitrator, you can ask the court to return the filing fee to you.
What happens if no one requests a new trial?
If the case is not dismissed within 30 days of the award and no one requests a new trial, the arbitrator’s award will become the final judgment of the court. The clerk of superior court will record the judgment, and interest will begin to accrue if the judgment is not paid.
How can I collect my judgment, and what are my rights if there is a judgment against me?
Once 30 days have passed and the arbitrator’s award becomes a final judgment, the winning party can begin the collections process, and the person who owes the judgment has certain rights to protect property from being seized to pay the judgment. See the Lawsuits Help Topic for information about judgments and collections.
Who can I contact with other questions?
If you have other questions about the arbitration process, you can contact the Arbitration Coordinator in the county where the case is pending. You can also contact an attorney about assisting you with your arbitration. The Arbitration Coordinator and other court staff cannot give legal advice about how to present your case.
My contract has a clause that states I must participate in arbitration. How do I arbitrate a matter without going through the court system?
The district court has no jurisdiction to refer a case to arbitration through the Court-Ordered Arbitration Program unless a civil action has been filed with the court, and the case is eligible for arbitration under Rule 2 of the Court-Ordered Arbitration Rules. If you are a party to a contract that requires arbitration as a resolution means before a court action may be filed, the NCAOC is unable to give guidance. You may want to contact an attorney for advice on how to proceed.
What is mediation?
Mediation is a guided conversation that can allow people to settle a legal dispute themselves without the need for a long process of litigation or a trial. This can save money, time, and stress for people involved in pending court proceedings.
What cases can be mediated?
Parties with a legal dispute can always choose to attend private mediation on their own. The courts order some cases to mediated settlement conferences, such as:
- Civil cases in the Superior Court division. Generally, cases in which one party requests more than $25,000 or a court order called an “injunction” are filed in Superior Court.
- Family cases involving equitable distribution, alimony, post-separation support, or claims related to separation agreements.
The courts also have an option to send other case types to mediated settlement conferences, for example:
- Estate and guardianship cases before the Clerk of Superior Court may be ordered into mediation by the presiding Clerk of Court.
- Low level misdemeanor cases pending in District Criminal Court may enter mediation upon the recommendation of the Judge, or their designee, with the consent of all parties.
What happens at a mediated settlement conference?
A trained, neutral person called a mediator will help the parties and their attorneys discuss their dispute and will assist the parties in reaching an agreement to resolve the dispute. To begin the conference, the mediator will explain the mediation process and may ask the attorney for each side to describe the case from their point of view. The parties may then go to separate rooms and discuss the case with the mediator individually, or everyone may discuss the dispute as a group. If the parties reach an agreement, their attorneys will put the agreement into writing, or the mediator will prepare a written “memorandum of agreement” stating the agreed-upon terms.
What does the mediator do?
A mediator’s job is to serve as facilitator and referee for the discussions. Mediators do not make decisions for the parties. The mediator’s goal is to help the parties resolve the dispute themselves.
I have an attorney. Do I need to do anything at mediation?
You and your attorney can decide how much you will participate at the mediation. The mediation process is designed to allow people to take an active role in discussing and settling their cases, but some people prefer to let their attorney speak for them. Mediation is not a trial and you will not be asked to testify about the case.
Will my attorney be with me and will I be able to speak privately with my attorney?
Yes. Your attorney will be present throughout the mediation, unless you agree otherwise, and you can let your attorney, or the mediator know if you want to speak privately with your attorney at any time.
Who will be my mediator?
The parties and their attorneys have the option of selecting a certified mediator. The N.C. Dispute Resolution Commission, which certifies mediators, keeps a database of certified mediators for various types of cases, along with a guide to selecting a mediator. If you and the opposing party do not select a mediator or cannot agree on one, the court will appoint a certified mediator to your case.
How much does mediation cost?
For superior court matters, family financial matters, or matters before the clerk of court, if you, the other party, or the attorneys involved choose your mediator, you will discuss the fee with the mediator. If your mediator is appointed by the court for a superior court matter or family financial matter, he or she will be paid $150 per hour plus a one-time $175 administrative fee. A court-appointed mediator for a clerk matter will be paid $150 per hour plus a one-time $150 administrative fee. Unless otherwise agreed by the parties or ordered by the court, the fee is split equally between the parties. You may be asked to pay the administrative fee up front. All other fees will be due at the end of your conference.
For matters pending in district criminal court, the court will assign a mediator from a community mediation center to mediate the case. The mediation fee is $60, to be paid before the mediation by the defendant, or as agreed upon by the parties.
If you cannot afford to pay your mediator, you can file the appropriate form with the clerk of court asking the court to waive the mediator’s fee. If the court decides that you are not able to pay the fee, you will not be required to pay for the mediator. For superior court matters, file form AOC-CV-814. For family financial matters, file for AOC-CV-828. For matters before the clerk of superior court, file form AOC-G-306T. For district criminal court matters, the court may waive the dismissal fee. Court forms may be accessed at this link.
Where will mediation be held?
Mediation can be held at any location agreed to by the parties and the mediator. If the parties cannot agree on a location, the mediator will schedule the mediation for a neutral place in the county where the case is pending.
What if I don’t agree to the terms discussed at the mediation?
You are not required to reach an agreement at mediation. If you do not agree on a settlement, you are not bound by the terms you discussed during negotiations. Whether or not you settle your case, the mediator is required to keep statements made in mediation confidential. The mediator will not report to the judge or jury on the statements made in mediation.
How can I make a complaint about a mediator?
You may be able to resolve the issue by discussing it with your mediator. If you are unable to resolve the issue, you or your attorney can file a complaint with the Dispute Resolution Commission. The Commission enforces Standards of Professional Conduct for mediators in North Carolina. The Commission can be reached by phone at (919) 890-1415. For more information about the Dispute Resolution Commission, or the mediation process, please visit www.ncdrc.gov.