On May 23, 2005, the General Assembly adopted legislation establishing a mediation program for matters referred to mediation by Clerks of Superior Court. Rules implementing the new legislation were adopted by the NC Supreme Court effective March 1, 2006, and the program began to operate.
A Clerk may refer any eligible matter to mediation, including guardianship, estate, and boundary and partition disputes. Some matters are not eligible for referral, including adoptions and foreclosures.
The Clerk Mediation Program is designed as a "party pay" program in that the parties compensate the mediator for his/her services. (However, if the Clerk determines that a party is indigent, i.e., cannot afford to pay, the mediator must provide his/her services at no charge.) Since they are paying the fees, parties are given an opportunity to select their mediator. If the matter being mediated is an estate or guardianship dispute, then the parties must choose a mediator who has been trained to mediate estate and guardianship cases and who is certified as a Clerk Program mediator by the Dispute Resolution Commission. If the matter referred does not involve a dispute over an estate or guardianship, then the parties may select any certified Clerk, Mediated Settlement Conference (MSC) or Family Financial Settlement (FFS) mediator to conduct their mediation. If the parties cannot agree on who shall conduct their mediation or take no action to select, the Clerk will appoint amediator. Mediations are usually held in the office of the mediator or the office of one of the attorneys involved in the case. They may also be held in the courthouse.
The mediator serves as a facilitator only, focusing the parties' discussions and brainstorming with them in a search for settlement options. The mediator will not make a decision for the parties. Following a successful mediation, the agreement will be reduced to writing and the parties will sign it. If the matter being mediated involves a dispute the outcome of which the Clerk is required to approve, then the agreement must be submitted to the Clerk and the Clerk will take it into consideration. If an agreement cannot be reached in mediation, the mediator will advise the Clerk and the matter will proceed to a hearing.The mediator will not advise the Clerk why the matter did not settle.