Rule 4. Duties of Parties, Attorneys, and Other Participants in Mediated

Settlement Conferences (a) Attendance. (1) Persons Required to Attend. The following persons shall attend a mediated settlement conference: a. The parties. b. At least one counsel of record for each party whose counsel has appeared in the case. (2) Attendance Method. a. Determination. 1. All parties and persons required to attend a mediated settlement conference may agree to conduct the conference in person, using remote technology, or using a hybrid of in-person attendance and remote technology. 2. If all parties and persons required to attend the conference do not agree on an attendance method and the mediator has designated in the Mediator Information Directory that he or she will conduct conferences only using remote technology, then the conference shall be conducted using remote technology. 3. If all parties and persons required to attend the conference do not agree on an attendance method and the mediator has not selected remote technology as his or her designated attendance method in the Mediator Information Directory, then the conference shall be conducted in person. b. Order by Court; Mediator Withdrawal. The chief district court judge, upon motion of a party and notice to the mediator and to all other parties and persons required to attend the mediated settlement conference, may order that the conference be conducted in person, using remote technology, or using a hybrid of in-person attendance and remote technology. If the method of attendance ordered by the judge is contrary to the attendance method the mediator has designated in the Mediator Information Directory, then the mediator may withdraw from the case under Rule 2(d). (3) Excusing the Attendance Requirement. Any party or person may be excused from the requirement to attend a mediated settlement conference with the consent of all parties and persons required to attend the conference and the mediator. (4) Safety Compliance. The mediator and all parties and persons required to attend a mediated settlement conference shall comply with all federal, state, and local safety guidelines that are in place for trial court proceedings at the time of the conference. (b) Scheduling. Participants required to attend the mediated settlement conference shall promptly notify the mediator, after selection or appointment, of any significant problems that they may have with the dates for mediated settlement conference sessions before the completion deadline, and shall inform the mediator of any problems that arise before an anticipated conference session is scheduled by the mediator. If a scheduling conflict in another court proceeding arises after a conference session has been scheduled by the mediator, then participants shall promptly attempt to resolve the conflict under Rule 3.1 of the General Rules of Practice for the Superior and District Courts, or, if applicable, the Guidelines for Resolving Scheduling Conflicts adopted by the State-Federal Judicial Council of North Carolina on 20 June 1985. (c) Finalizing Agreement. (1) If an agreement is reached at the mediated settlement conference, then the parties shall reduce the essential terms of the agreement to writing. a. If the parties conclude the mediated settlement conference with a written document containing all of the terms of their agreement for property distribution and do not intend to submit their agreement to the court for approval, then the agreement shall be signed by all parties and formally acknowledged as required by N.C.G.S. § 50-20(d). If the parties conclude the conference with a written document containing all of the terms of their agreement and intend to submit their agreement to the court for approval, then the agreement shall be signed by all parties, but need not be formally acknowledged. In all cases, the mediator shall report a settlement to the court and include in the report the name of the person responsible for filing closing documents with the court. b. If the parties reach an agreement at the mediated settlement conference regarding property distribution and do not intend to submit their agreement to the court for approval, but are unable to complete a final document reflecting their settlement or have it signed and acknowledged as required by N.C.G.S. § 50-20(d), then the parties shall produce a written summary of their understanding and use it to guide them in writing any agreements as may be required to give legal effect to their understanding. If the parties intend to submit their agreement to the court for approval, then the agreement must be in writing and signed by the parties, but need not be formally acknowledged. The mediator shall facilitate the production of the summary and shall either: 1. report to the court that the matter has been settled and include in the report the name of the person responsible for filing closing documents with the court; or 2. declare, in the mediator’s discretion, a recess of the mediated settlement conference. If a recess is declared, then the mediator may schedule another session of the conference if the mediator determines that it would assist the parties in finalizing a settlement. (2) In all cases where an agreement is reached after being ordered to mediation, whether prior to, or during, the mediation, or during a recess, the parties shall file a consent judgment or voluntary dismissal with the court within thirty days of the agreement or before the expiration of the mediation deadline, whichever is later. The mediator shall report to the court that the matter has been settled and who reported the settlement. (3) An agreement regarding the distribution of property, reached at a proceeding conducted under this section or during a recess of the mediated settlement conference, which has not been approved by a court, shall not be enforceable unless it has been reduced to writing, signed by the parties, and acknowledged as required under N.C.G.S. § 50-20(d). (d) Payment of the Mediator’s Fee. The parties shall pay the mediator’s fee as provided by Rule 7. (e) No Recording. There shall be no stenographic, audio, or video recording of the mediation process by any participant. This prohibition includes recording either surreptitiously or with the agreement of the parties. Comment Comment to Rule 4(a). Rule 4(a)(2)(a) Cases in which an agreement on all issues describes the attendance methods used for has been reached should be disposed of as mediated settlement conferences. If a conference expeditiously as possible. This assures that the is conducted using remote technology, then the mediator and the parties move the case toward mediator should ensure that the parties are able disposition while honoring the private nature of to fully communicate with all other participants the mediation process and the mediator’s duty of and videoconferencing is encouraged. confidentiality. If the parties wish to keep the terms of the settlement confidential, then they Comment to Rule 4(c). Consistent with may timely file closing documents with the court, N.C.G.S. § 7A-38.4A(j), no settlement shall be as long as those documents do not contain enforceable unless it has been reduced to writing confidential terms (e.g., a voluntary dismissal or and signed by the parties. When a settlement is consent judgment resolving all claims). reached during a mediated settlement Mediators will not be required by local rules to conference, the mediator shall ensure that the submit agreements to the court. terms of the agreement are reduced to writing and signed by the parties and their attorneys before ending the conference. History Note. 373 N.C. 708; 374 N.C. 1009; 375 N.C. 1088; 378 N.C. 801; 384 N.C. 745.