In 1991, the General Assembly authorized a pilot program of pre-trial, court-ordered mediated settlement conferences for civil cases filed in Superior Court. The new program was charged with facilitating the settlement of superior court civil actions and with making civil litigation more economical, efficient, and satisfactory to litigants and the public.
The pilot program operated through October of 1995. After studying the program and determining that it met the goals established for it, the General Assembly adopted N.C. Gen. Stat. §7A-38.1, authorizing statewide expansion of the Mediated Settlement Conference Program. The goals the General Assembly set for the pilot program were carried forward in the legislation establishing the permanent program.
In November of 2002, the Program's Rules were revised to establish a dispute resolution menu in superior court. With the establishment of the menu, parties were free to select among a number of dispute resolution processes to which their case could be referred including: mediated settlement, neutral evalution, arbitration, and summary jury trial. If the parties failed to select one of the other options, mediated settlement remained the default procedure.
Pursuant to N.C. Gen. Stat. §7A-38.1 and the North Carolina Supreme Court's Rules Implementing Mediated Settlement Conferences (MSC Rules), referral to mediated settlement is mandatory for civil actions pending in superior court (unless the parties agree to participate in one of the other options available to them through the dispute resolution menu). The only cases excluded from mandatory referral are actions in which a party is seeking the issuance of an extraordinary writ or is appealing the revocation of a motor vehicle operator's license.
The Mediated Settlement Conference Program is designed as a "party pay" program in that the parties, and not the court or the taxpayers, compensate the mediator who conducts the mediated settlement conference. (However, in situations where the court finds that a party is indigent, i.e., without funds to pay, the mediator must waive his/her fee.) Since they are paying the mediator's fee, parties are given an opportunity to select their mediator. Parties ordered to participate in mediated settlement must choose a mediator certified by the Dispute Resolution Commission. If the parties cannot agree on who shall conduct their conference or take no action to select a mediator, the Senior Resident Superior Court Judge will appoint a certified mediator to conduct the conference. The mediator is responsible for scheduling the conference and for finding a location where it can take place.
The mediator serves as a facilitator only, focusing the parties' discussions and brainstorming with them about how they might settle their dispute. A mediator cannot and should not try to force parties to settle. Following a successful mediation, the agreement reached will be reduced to writing and signed and the mediator will notify the court that the case has settled. If the case does not settle in mediation, the mediator will report an impasse to the court and the dispute will proceed to trial. (The mediator will not discuss what occured at mediation, including offers or counter-offers, with the judge or jury.) Many times, cases which impasse at mediation go on to settle in the coming weeks as parties and their attorneys continue the discussion begun in mediation.