(revised March 2015)
When 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” (hereinafter referred to as “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 on this website at http://appellate.nccourts.org/Mediation/Consent.pdf.)
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.
In addition to consenting to the mediation process, the parties must consent to 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 $400.00 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. (Designation of Private Mediator form available at http://appellate.nccourts.org/Mediation//PrivateMediatorDesignation.pdf.) Once the parties consent to mediation and a mediator has been designated, the mediator should promptly schedule and conduct the mediation. No later than 5 days after the mediation, the mediator must prepare and deliver to the Clerk of the Court of Appeals the “Report of Mediator” form, which is available on this website at http://appellate.nccourts.org/Mediation/ReportofMediator.pdf.
The parties should each supply a “Mediation Statement” to the mediator at least 2 days before the scheduled conference. 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.
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 unless the parties and the mediator agree otherwise. Private Mediators may use the Court of Appeals facilities for the mediation when available. Telephonic mediation may be used, but only if all parties and the mediator agree in advance of mediation session.
All 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 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. If the mediation is successful, the appellant is responsible for moving to dismiss both the appeal (form motion provided at http://appellate.nccourts.org/Mediation/MotionToDismiss.pdf) and the case in the trial court, if necessary.