(revised June 2004)
Since 1 August 2002, the Clerk of the Court of Appeals has furnished with its docketing notice a "Consent to Appellate Mediation" form, in all cases eligible to participate in the Court's mediation program. The mediation program ran as a pilot for eight months and in February 2004 became permanent. The form goes to counsel for all parties (parties proceeding pro se are not eligible for mediation), who should complete and return the form within 20 days after docketing, and serve on all other counsel.
Participation in mediation does not delay the printing of the record on appeal or suspend the deadlines for the filing of briefs, as set forth in the Rules of Appellate Procedure. The parties are responsible for moving the Court of Appeals to extend any deadlines that would otherwise run while mediation proceeds.
When all parties consent to mediate, they must also agree on the type of mediator. There are three options: parties may choose (1) a current Court of Appeals judge, trained as a mediator (Current Judge), (2) a Emergency Recalled Court of Appeals judge (Recalled Judge), trained as a mediator, or (3) a privately employed mediator (Private Mediator). 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 of the case. If the parties elect to employ a Recalled Judge, that person will serve for a flat fee of $300.00 per day or part thereof, and thereafter will not participate in any other capacity in the appeal of the case. If the parties elect to employ a private mediator, that person's fee will be set by agreement between the parties and the mediator, and will be due and payable upon completion of the mediated settlement conference. Once the parties consent to mediation and a mediator has been designated, the mediator should promptly schedule and conduct the mediation.
Upon request of the mediator, the parties should each supply to the mediator, at least 2 days before the scheduled conference, a "Mediation Statement," no more than 4 pages in length. The statement should include: (1) a brief history of the litigation, (2) the history of any efforts to settle the case, including any offers or demands, (3) a summary of the parties' legal positions, (4) the present posture of the case, including any related litigation in the trial tribunal, and (5) any proposals for settlement. The Mediation Statement must not be filed in the office of the Clerk of the Court of Appeals.
Counsel and parties must be present for the mediation unless excused by the mediator. The mediation, if conducted by a Current Judge, will be held in the Court of Appeals Building in Raleigh (or nearby overflow facilities) unless the parties and the mediator agree otherwise. Private Mediators may use the Court of Appeals facilities for the mediation, but in case of scheduling conflicts, a session of Court in the Court of Appeals or a mediation by a Current Judge will have priority for use of those facilities. Telephonic mediation may be used if all parties and the mediator agree.
All mediation sessions are confidential. All information shared during the course of the mediation, including 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 course of the mediation, in subsequent briefs, oral arguments or in any other communication to the Court, except to the extent necessary to complete the Report of Mediator Form (required within 5 days after completion) or to inform the Court that mediation was successful or not. If the mediation is successful, the appellant is responsible for moving to dismiss both the appeal (form motion provided) and the case in the trial court, if necessary.