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Summary of Advisory Opinions
 
To view the full text of Advisory Opinions and do a Ctrl+F key search of the full Opinions, click here . Or use the Ctrl+F key search for the summaries below.
Advisory Opinion Number Summary of Advisory Opinion

Any discrepancies between published Advisory Opinions and the Summaries below are to be construed in favor of the Full Opinion.

30(2014) Mediator was subpoenaed to testify and did testify in an action to enforce a mediated settlement agreement reached at mediation. The parties did not object to the testimony and the court did not compel the testimony. The mediator did not alert the Court to Standard III and his duty to preserve confidentiality. The Commission reaffirmed its opinion formerly set out in its Advisory Opinion 01-03 and stressed that mediators in court-ordered mediations and certified mediators in all mediations, unless exempted by Standard III, should not voluntarily testify as to statements made or conduct occurring at a mediation. Instead, a mediator should alert the Court by motion or otherwise of his/her duty of confidentiality under Standard III. It is irrelevant that the parties do not object to the testimony. The mediator in this case was sanctioned by the Commission.
29(2014) This opinion discusses the duty of the mediator to define and describe the separate and distinct concepts of confidentiality and inadmissibility at the beginning of the mediation. Mediator mediated a civil superior court case in which the plaintiff alleged sexual harassment by the defendant. Plaintiff was also the complaining witness in a criminal action against the defendant arising out of the same facts. G.S. 7A-38.1(l) provides that “evidence of statements made and conduct occurring in a mediated settlement conference…shall not be subject to discovery and shall be inadmissible in any proceeding in the action or other civil actions on the same claim…” (emphasis added). Participants in a mediated settlement conference in a civil case may be required to testify in a criminal matter. Although the mediator is under a duty to discuss confidentiality and inadmissibility, any discussion about how these concepts apply to the parties and their conversations in mediation is the responsibility of the attorneys for the parties.
28(2013) At the conclusion of a successful mediation, a divorcing couple, both of whom are pro se ask the mediator to prepare a binding agreement for their signatures, and further, to file a court action on their behalf to incorporate their agreement into a consent order. Standard VI of the Standards of Professional Conduct for Mediators provides that a mediator “shall limit himself/herself solely to the role of mediator, and shall not give legal or other professional advice during the mediation.” The opinion holds that the mediator may not prepare an agreement or file an action with the court because both activities are the “practice of law” under N.C. Gen. Stat. 84-2.1, and to do either would be a violation of Standard VI. This opinion also calls attention to N.C. State Bar 2012 Formal Ethics Opinion 2 which held that the attorney mediator could not prepare a binding business contract for two pro se parties at the conclusion of a successful mediation because the mediator had a “non-consentable” conflict of interest, and would improperly practice law if he drafted a contract requested by the parties.
27(2013) Pro se wife in an equitable distribution case informed her court-appointed mediator during the scheduling process that she was unable to pay his fees. Mediator insisted she must pay and when she refused, contacted her husband and sought payment of Wife’s share of the mediator fee from Husband; told the judge that he believed she could pay and that the parties were being unreasonable; failed to schedule a mediation; and upon Wife’s allegation of the mediator’s bias against her, withdrew from the case under Standard II.C.(1). Once a Mediator learns of a party’s claim of inability to pay, the Mediator should advise them of their right to file Form AOC-CV-828, Petition and Order for Relief From Obligation To Pay All Or Part of Mediator’s Fee in Family Financial Cases. Thereafter s/he should have no more communication about inability to pay and should schedule the mediation. This opinion holds that Mediator’s actions were inconsistent with FFS Rule 7.E and FFS Rule 6.A.(2) in that he failed to schedule the mediation, and with Standards III, Confidentiality, (conversations with Husband and judge), Standard II, Impartiality, (Mediator took a position in favor of the Husband), and Standard VII, Conflicts of Interest, (Mediator mixed his own financial business interests with the business of the parties), and became overly focused on his fee.
26(2013) Mediator learns that an appeal has been filed in a case that s/he has been assigned to mediate. The party filing the motion insists that the appeal divests the trial court of jurisdiction and stays the mediation. The opposing party wishes to proceed with the mediation. The Commission advises the mediator that it is ultimately the responsibility of the parties to seek clarification from the trial court in this instance. However, if they take no action, the mediator should seek guidance from trial court staff as to whether the mediation is stayed upon appeal of the case or it may proceed.
25(2013) At a court-ordered conference, a party objects to a corporation attending without legal counsel. The Commission advises mediators to avoid taking positions in disputes over attendance. Absent an order of the court dispensing with mediation, a mediator should conduct the conference and advise the parties to direct any questions about attendance to the court. In simply conducting the conference, an attorney mediator is not facilitating the unauthorized practice of law.
24(2013) At a court-ordered conference, a party objected to the attendance of an out-of-state attorney when the attorney had not been admitted pro hoc vice. The Commission advises mediators to avoid taking positions in disputes over attendance. Absent an order of the court dispensing with mediation, a mediator should conduct the conference and advise the parties to direct any questions about attendance to the court. In simply conducting the conference, an attorney mediator is not facilitating the unauthorized practice of law.
23(2012) Program enabling legislation provides for mediator testimony at State Bar disciplinary hearings regarding an attorney's conduct in mediation. However, where no subpoena is involved, the Commission does not read the legislation broadly to permit mediators to answer a State Bar investigator's questions in preliminary stages of an investigation. A note following the Opinion addresses situations where an attorney-mediator is him or herself the subject of the investigation.
22(2012) Standard III of the Standards of Professional Conduct for Mediators places a duty of confidentiality on mediators. Unlike their mediator, the parties and their counsel are not bound by Standard III and are free to talk to the public or press about statements or conduct occurring in the mediation. If the parties want to negotiate their own confidentiality agreement, the mediator should assist them.
21(2012) When a mediator is asked by one party to a mediation to review documents in advance of the conference, a mediator may charge for the time spent in that review. However, to maintain neutrality, the mediator should obtain permission of all parties before undertaking the review, even if one party offers to pay the entire fee associated with the review. Mediators are urged not to charge for routine document review, such as short case summaries or briefs.
20(2011) An attorney or non-attorney mediator who is also a notary public may notarize an agreement resulting from a mediation that s/he conducted.
19(2011) Party selected mediators may charge an advance deposit for their services mediating, but may not postpone or refuse to conduct a mediation when a party is unable to pay the deposit. A party should never be denied the opportunity to mediate because s/he or cannot pay some or all of the mediator's fee.
1819(2011) Mediator was disciplined privately by the Commission for neglecting his case management responsibilities, including failing to complete his Reports of Mediator fully and to file them timely. Opinion stresses the need for mediators to take their case management responsibilities seriously and to fulfill all their reporting obligations.
17(2010) A mediator is not precluded from serving as an arbitrator in a case that s/he has previously mediated. This Opinion distinguishes the situation where a mediator transitions to the role of arbitrator from the situation where a mediator becomes a fiduciary. Opinion # 8-15 addresses the latter situation and advises that mediators should not solicit or accept an appointment as a fiduciary when that appointment flows from the mediation process. Opinion #10-17 provides guidance on making the transition from mediator to arbitrator.
16(2010) During a caucus session held during the mediation of a family financial dispute, the wife and her attorney told the mediator confidentially that they had intentionally failed to disclose the existence of a valuable marital asset on their inventory affidavit. The mediator asks whether the mediation can continue in the face of this nondisclosure. The Opinion provides that, in these circumstances, the best practice would be for the mediator to engage the offending party and encourage her and her attorney to disclose the asset. If they refuse, then the mediator must terminate the session and withdraw from the mediation without violating the requirements of confidentiality.
15(2008) During a Clerk referred mediation of a dispute over who should serve as an estate's administrator/fiduciary, the mediator agreed to allow the parties to appoint him as the administrator/fiduciary. The Commission believes that soliciting or even accepting such an appointment at the insistence of the parties, can create the impression that the mediator manipulated the mediation process with the ultimate goal of furthering his or her won interests. A mediator should remain focused exclusively on his or her role as mediator and should not solicit or accept such an appointment.
14(2008) This Advisory Opinion addresses a proposal to form a panel of volunteer mediators willing to serve pro bono in mediations involving clients of legal services organizations. The Opinion discusses fees, including disclosure of waiver and negotiation of the shifting of payment to another party, both in the context of service on the proposed panel and in the context of any other mediation where a mediator has agreed to serve pro bono or for a reduced fee relative to at least one party.
13(2007) A mediator should not compromise his/her neutrality by overtly accusing a party of being untruthful during mediation or by using language tantamount to such an accusation. A mediator should not confront a party in a hostile or abusive manner. Such actions compromise the mediator’s neutrality. A mediator should not use profane language during mediation even if the parties or their lawyers are using such language.
12(2007) A court-appointed mediator distributed a copy of an agreement to mediate and asked the parties to sign it prior to their mediated settlement conference. The agreement contained terms that modified and even ran counter to program rules and the Standards of Professional Conduct for Mediators. The Commission determined that a court appointed mediator may not, though the use of an agreement to mediate, modify program rules or the Standards.
11(2007) Mediator failed to reduce the terms of an agreement reached in mediation to writing in accordance with MSC Rule 4.A.(2) and 4.C. Moreover, mediator should not have reported to the Senior Resident Superior Court Judge in his Report of Mediator that the case had been settled when there was no writing. Mediator should have accompanied the parties on their site visit to ensure that all the details were ironed out and then assisted them in reducing their agreement to writing.
10(2006) MSC Rule 4.A.(1) addresses who shall attend a conference. Pursuant to Rule 6.A.(1), the mediator has discretion to determine who else may be present. If there is a dispute between the parties regarding whether an individual may attend, it is best practice for the mediator to try and mediate the matter first. If the mediator cannot help the parties reach an agreement on the issue, then the mediator should make a determination as the whether the individual in question may attend.
09(2006) The mediator has a duty to warn parties when confidentiality is breached and parties are at financial or other risk because of the breach. The situation which gave rise to this opinion involved financial information that was removed from a mediator's laptop during service and that could not be re-located and restored.
08(2005) It is the duty of the mediator, and not that of the parties, to schedule the mediation within the timeframe established by the court for completion.
07(2004) Upon learning that a bankruptcy petition has been filed in a case, a mediator shall report to the court that the bankruptcy has been filed and shall request that the judge who referred the matter to mediation advise the mediator as to whether s/he should hold the conference.
06(2004) A mediator who conducts a mediation for a couple that is separating may not thereafter represent either the husband or wife in divorce proceedings.
05(2003) As long as he or she does not reveal any confidential information, a mediator may, following an impasse, continue to assist a party or parties who contact the mediator in an effort to revive discussions or to clarify something that was said at mediation. If the mediator believes that the party who contacted him/her has a nefarious motive, the mediator is not obligated to respond or to involve him or herself further in the matter.
04(2003) It is discretionary with individual mediators as to how long they retain mediation files, but mediators should consider confidentiality concerns in making decisions regarding file retention.
03(2001) Confidentiality is integral to the success of the mediation process. Mediators should be vigilant in their efforts to preserve confidentiality and should not give affidavits or testify in court as to statements and conduct occurring in connection with a mediation unless the communication is permitted by an exception set forth in a statute or Standard.
02(2000) It is preferable for parties to physically attend a mediation conference rather than participating by telephone. A mediator should not waive or modify the attendance requirement absent some compelling reason to do so.
01(1999) Once a case has been ordered to mediation, a mediator has a duty to assemble the parties and hold the conference prior to the deadline for completion. A mediator may not simply report an impasse based on a representation by the parties that the case cannot be settled.
 
 
 
   
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