Is North Carolina Going Back to In-Person Mediation?
May 2, 2023

As of May 1, 2023, mediation conducted by remote technology is no longer the default method in North Carolina. Instead, the method for mediation depends on the mediator and the parties in each case. The scope of this article is limited to the following programs administered by the North Carolina Dispute Resolution Commission:

  1. Mediated Settlement Conferences in Superior Court;
  2. Family Financial; and
  3. Clerk of Court.


A little historical context is important to understand the significance of these rule changes. Prior to the COVID-19 pandemic, the mediation rules in North Carolina heavily favored in-person mediations. In 2020, as a result of the COVID-19 pandemic, the North Carolina Supreme Court adopted amendments to the North Carolina mediation rules, which made mediation by remote methods the default rule, unless either: the parties and the mediator agreed otherwise; or the court ordered otherwise. Many lawyers and mediators alike feared that the rules would revert back to the pre-pandemic preference for in-person mediations. However, the current amendments allow for greater flexibility on a case-by-case basis while still providing definitive guidance in the event of disagreements about the method by which the mediation will be conducted.

Although other rules were also changed, the changes to Rule 4 of the North Carolina Mediation Rules (MSC, FFS, and Clerk), as of May 1, 2023, have been what many mediators and lawyers alike have been anxiously awaiting. As of May 1, 2023, mediation conducted by remote technology is no longer the default method. Instead, the method for mediation depends on the mediator and the parties in each case. Here is a step-by-step guide to the analysis:


Step 1 


Mediators may indicate on their North Carolina Dispute Resolution Commission (the “DRC”) mediator profile whether they will mediate in-person only, via remote technology only, or by any method.



Step 2 


The parties and the mediator in each case may determine the method of the mediation.



Step 3 


If the parties, the lawyers, and the mediator cannot agree in Step 2, then the method of mediation will default to the method indicated in the mediator’s profile with the DRC.



Step 4 


If the mediator did not make any designation in their DRC profile or if the mediator designated “any method,” then the mediation will default to in-person.



Step 5 


Any party, upon notice to all parties and the mediator, may file a motion with the Court to determine the method by which the mediation will be conducted.



These recent changes to the North Carolina Mediation Rules allow for flexibility to address the unique circumstances and preferences of each case. A full text of all the amendments to the North Carolina Mediation Standards of Professional Conduct and Rules can be found here.

Amendments to the North Carolina Mediation Rules Effective January 6, 2025

By Colleen Byers • January 8, 2025
What Attorneys and Mediators Need to Know On December 11, 2024, the North Carolina Supreme Court approved a series of important amendments to the Mediation Rules and Standards of Professional Conduct for Mediators. Effective on January 6, 2025, these changes impact key aspects of mediation practice in North Carolina.  Below is a summary of some (although not all) of the recent amendments to the Standards of Professional Conduct for Mediators, and the Mediation Rules governing settlement procedures in Superior Court, Family Financial, and Clerk of Court matters. For comprehensive redlines to each rule set, visit https://www.nccourts.gov/news/tag/general-news/supreme-court-amends-mediation-rule-sets Superior Court Mediation Amendments New Mediator Designation Forms See Rule 2(a) & (b) There are now two separate forms for mediator assignment, depending on whether the mediator is party selected or court appointed. One form entitled Designation of Mediator By Agreement of Parties in Superior Court Action and Order of Appointment (AOC-CV-812) is for parties to designate a mediator of their choice, while the other form entitled Appointment of Mediator by Court Order in Superior Court Civil Action (AOC-CV-840) is for requesting a court-appointed mediator or for court staff to file a mediator appointment where the parties have been unable to agree on the selection of a particular mediator. It is important to note that in order for any of the parties to designate a mediator of their choice, all parties, including but not limited to unrepresented parties, must agree to designate said mediator. If all parties have not expressed agreement to designate a particular mediator, then the parties and/or their counsel must use AOC-CV-840 to ask the court to select a mediator. Attorney Signatures Removed from Mediated Settlement Agreement See Rule 4(c) & Rule 10(c)(9)(b) The requirement for attorneys to sign the final settlement agreement, alongside their clients, has been removed. Updates to the form Mediated Settlement Agreement (AOC-DRC-15 and AOC-DRC-16) are anticipated so be sure to use the most up to date forms in your mediations. Party Designee Signature See Rule 4(c)(4) A clarification was made regarding the ability of a designee to sign on a party's behalf if the party does not attend the conference in person . A designee may sign the agreement on behalf of a party only if the party does not attend the mediated settlement conference in person and the party provides the mediator with a written verification that the designee is authorized to sign the agreement on the party’s behalf. The Dispute Resolution Commission’s Advisory Opinion AO 42 provides mediators with further guidance when a designee wishes to sign for a party who does not attend the mediation in person. Substitution of Mediator See Rule 7(c) The form used to request mediator substitution by mutual consent of all parties has now been linked directly to Rule 7(c) (AOC-CV-836). This makes the substitution process more efficient and standardized. Family Financial Mediation Amendments New Mediator Designation Forms See Rule 2(a) & (b) Just like the Superior Court Civil Actions, the process for assigning mediators in family financial cases has been updated with two new forms. One form (AOC-CV-825) allows for party-selected mediators, and the other (AOC-CV-841) is used to request a court-appointed mediator. Substitution of Mediator See Rule 7(c) The same update regarding mediator substitution applies here as in the other rules, with the relevant form (AOC-CV-836) linked directly to this rule. Clerk of Court Mediation Amendments New Mediator Designation Forms See Rule 2(a) & (b) Similarly to the other updates, the process for assigning mediators in matters before the Clerk of Superior Court has been divided into two forms. One form (AOC-G-302) is used for party-selected mediators, while the other (AOC-G-314) is used to request court-appointed mediators. Attorney Signature Removal See Rule 4(b) As in the other rules, the requirement for attorneys to sign the final agreement with their client has been removed from Rule 4(b). Mediator Confidentiality Amendment Exception to Confidentiality See Standard 3(d)(2) This amendment creates an important exception to the general rule of confidentiality in mediation. Specifically, it allows a mediator to testify, give an affidavit, or tender an agreement if required not only by a statute (as previously excepted) but now also by a mediation rule promulgated by a state or federal agency. The change clarifies that a mediation rule also serves as the basis under which a mediator may be compelled to breach confidentiality. Summary: What You Need to Do As of January 6, 2025, the new and updated forms should be available for use at www.nccourts.gov, and it is important to ensure your practice aligns with these amendments. The most notable changes include the following: Two different mediator designation forms, Attorneys do not need to sign the settlement agreement, and Revised mediator substitution form.

Managing Emotional Clients

By Colleen Byers • February 6, 2024
Managing Emotional Clients Colleen L. Byers collaborated with fellow neuroscience geek and mediator, Chris Osborn, to deliver this month’s Expert Continuing Legal Education (CLE) Series sponsored by the North Carolina Bar Association. Colleen co-presented about the impact of trauma on clients in the legal system and shared some practical tools for managing difficult emotions within ourselves (as lawyers or as mediators) as well as with our clients. View the CLE, which includes 1 hour of Mental Health/Substance Abuse credit in North Carolina here .