The statewide Prelitigation Farm Nuisance Mediation Program was established by N.C. Gen. Stat. § 7A-38.3
on October 1, 1995. The statute is designed to encourage and promote early resolution of disputes alleging the existence of an agricultural nuisance. The statute defines an agricultural nuisance as farming or livestock raising activity that is injurious to health, indecent, offensive to the senses, or an obstruction to the free use of property. (See § 7A-38.3(a)) Most cases mediated pursuant to this statute have involved hog farm operations maintained in the eastern regions of the State or in the Fayetteville/Goldsboro area. Entire communities have been involved in some such disputes alleging, among other things, offensive odors and ground water contamination.
This program differs from other statewide dispute resolution programs in North Carolina in that it is designed to operate "prelitigation", that is, before a lawsuit has been filed. In fact, mediation of such disputes is mandatory before a civil action can be brought alleging the existence of a farm nuisance in either superior or district court and 7A-38.3(c) provides that any case filed prior to a prelitigation mediation, can be dismissed upon motion of either party.
Prelitigation mediation is initiated by the filing of a Request for Mediation with the Clerk of Superior Court. A form to make the Request is available through the DRC's office and a copy must be served on all parties to the dispute. Parties to the dispute then have an opportunity to select their mediator. If the parties cannot agree on a mediator, 7A-38.3(d) provides for the Senior Resident Superior Court Judge in the district to appoint one. Prelitigation mediations are to be conducted in accordance with the Rules Implementing the Mediated Settlement Conference Program
and with Rules Implementing the Prelitigation Farm Nuisance Mediation Program.
7A-38.3(f) provides for a waiver of the requirement for mandatory prelitigation mediation of farm nuisance disputes provided that the parties agree to waive mediation and notify the mediator of their waiver in writing. Either upon receipt of such a waiver or the conclusion of a prelitigation mediation, the mediator will issue a certification indicating a waiver was requested or that a prelitigation mediation was held. If a waiver was sought or mediation resulted in impasse, then the parties may use the certificate issued by the mediator to proceed to file their dispute in court.
Anyone wishing to obtain copy of the Rules for the farm nuisance program, program forms or additional information, should contact the DRC's office.