By Mark Finkelstein, Partner, Smith Moore Leatherwood LLP
The North Carolina Dispute Resolution Commission has recently issued a number of advisory opinions that lawyers in the dispute resolution business should know.
A. Mediator Testimony
First, The confidentiality provisions of Standard III have been held to prohibit a mediator from testifying regarding statements at mediation even when all parties want the mediator to testify. Standard III.A states in part that:
“Apart from statutory duties to report certain kinds of information [i.e. juvenile and elder abuse], a mediator shall not disclose, directly or indirectly, to any non-party, any information communicated to the mediator by a party within the mediation process.”
While the parties may testify regarding the mediation for the purposes of determining whether an enforceable settlement was reached and the mediator may provide his written report of mediation, the mediator may not testify about what happened at the mediation. Advisory Opinion No. 30 (2014) (comment period ending October 10, 2014).
B. Limits of Inadmissibility of Statements Made in Mediation
Many lawyers are surprised to learn that there are limits to the rule on inadmissibility of statements made at mediated settlement conferences. The Dispute Resolution Commission addressed the limitations of G.S. § 7A-38.1(1). This statute provides:
“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 …”
However, statements made during mediation may be used in criminal cases and in civil actions on different claims. There are also at least four additional exceptions to the inadmissibility of statements during mediation “rule”:
(1) Proceedings to enforce or rescind a settlement;
(2) Proceedings for sanctions regarding the mediation;
(3) Disciplinary proceedings before the State Bar or the North Carolina Dispute Resolution Commission; and
(4) Proceedings to enforce laws concerning juvenile or elder abuse.
Mediators have the duty to define and describe these concepts of inadmissibility, but legal interpretation of these rules is the responsibility of counsel for the parties. Advisory Opinion No. 29 (2014).
C. Disputes over Corporate Appearance
Advisory Opinion No. 25 addresses the issue of mediator conduct when a corporate party
indicates that it will be represented by an employee only and not a lawyer. The opinion indicates that the mediator should act as a neutral facilitator and is not required to police attendance issues. The mediator should hold the conference and report to the court those individuals who are present at the conference. The parties can address issues regarding attendance to the court either before or after the mediated settlement conference.
D. Interlocutory Appeal
What should happen when a case with a mediation deadline is appealed and the appeal may be of an interlocutory order that may not affect a substantial right? The appeal of an interlocutory order that does not affect a substantial right does not deprive the trial court of jurisdiction. RPR & Associates, Inc. v. The University of North Carolina – Chapel Hill, et al., 153 N.C.App. 342 (2002). In such a case, the parties should obtain guidance from the court as to whether the matter is stayed pending appeal, and if they fail to do so, the mediator should obtain such guidance from the trial court. Advisory Opinion No. 26 (May 17, 2013).
The law of mediation is complex and detailed. The duty of competence requires all lawyers involved in the mediation process to understand this complex and detailed law.
*Any opinion or views expressed in blogs posted on this site are those of the identified author and not the Committee as a whole.