North Carolina Industrial Commission Rules for Mediated Settlement and Neutral Evaluation Conferences

Effective 1 January 2011

(a) Mediation Upon Agreement of the Parties. If the parties to a workers’ compensation claim or state tort claim agree to mediate their claim, they may schedule and proceed with mediation on their own, or they may submit a request for a mediation order pursuant to Rule 1(d). No order from the Commission is necessary if the parties mutually agree to mediate, but the mediator shall file a report of mediation with the Commission as required by Rule 6(b)(4). If the parties proceed with mediation in the absence of an order from the Commission, and the Commission thereafter enters a mediation order, the parties shall timely notify the Commission that they have agreed upon the selection of a mediator or, if the mediation conference has been completed, that they request to be excused from any further mediation obligations pursuant to Rule 1(g).

(b) Referral Upon Receipt of a Form 33 Request for Hearing. In any case in which the Commission receives a Form 33 Request for Hearing, the Commission shall order that disputed case to a mediated settlement conference.

(c) By Order of the Commission. Commissioners, Deputy Commissioners, the Commission’s Dispute Resolution Coordinator, and such other employees as the Commission Chair may designate from time to time may, by written order, require the parties and their representatives to attend a mediated settlement conference concerning a dispute within the tort and workers’ compensation jurisdiction of the Commission. Requests to dispense with or defer a mediation conference shall be addressed to the Dispute Resolution Coordinator. Unless the context otherwise requires, references to the “Commission” in these rules shall mean the Dispute Resolution Coordinator.

(d) Mediation Upon Request of a Party. If a case is not otherwise ordered to a mediated settlement conference, a party may move the Commission to order such a conference. Such motion shall state the reasons why the order should be allowed and, if the case is pending on the hearing docket, whether the party prefers for the case to be set for hearing on the next docket, for it to not be heard until further notice from the parties, or for it to not be set before a specified date. The motion shall be served on non-moving parties. Responses may be filed in writing with the Commission within 10 days after the date of the service of the motion. The Commission may require that any motion for a mediation order be submitted on a form provided by the Commission.

(e) Timing of the Order. The order requiring mediation may be issued whenever it appears that the parties have a dispute arising under the Workers’ Compensation Act or Tort Claims Act.

(f) Content of Order. The Commission’s order shall (1) require that the mediated settlement conference be held in the case, that pertinent documents be exchanged and that any specified discovery be completed prior to the conference; (2) establish a deadline for the pre-conference exchange of documents and other discovery, and for the completion of the conference; (3) provide a period within which the parties may select a mediator by mutual agreement (see Rule 2); (4) state the rate of compensation of the Commission-appointed mediator in the event that the parties do not exercise their right to select a mediator pursuant to Rule 2; (5) state that the parties shall be required to pay the mediator’s fee at the conclusion of the settlement conference unless otherwise ordered by the Commission (see Rule 7); and, (6) may specify a date for an Industrial Commission hearing should the parties fail to reach a settlement.

(g) Motion to Dispense with or Defer Mediated Settlement Conference. Mediation may be dispensed with or canceled by the Commission, but may not be dispensed with or canceled by the parties or the mediator, unless the parties have agreed, subject to Commission approval, on a full and complete resolution of all disputed issues set forth in the request for hearing filed in the case, and have given notice of the settlement to the Dispute Resolution Coordinator. As used herein, the terms “dispensed with” and “canceled” shall mean and refer to setting aside or rescinding the mediation order(s) entered in the case, or excusing the parties from their obligations under the order(s) or these rules. Within 55 days of the filing of a Form 33 Request for Hearing, or otherwise within 21 days of the date of the Commission’s order entered pursuant to Rules 1(c) and 1(d), a party may move to dispense with or defer the conference. Such motion shall state the reasons the relief is sought, and must be received by the Dispute Resolution Coordinator within the applicable 21 or 55 day deadline. For good cause shown, the Commission may grant the motion. However, failure to file a motion to dispense with mediated settlement conference within the above stated 21 or 55 day deadline and after a mediator has been appointed may result in the moving party or parties, or other responsible person, being required to pay an administrative fee of up to $100.00 to the Commission.

(h) Exemption from Mediated Settlement Conference. In order to provide for the most efficacious use of mediation and neutral evaluation procedures, the Commission may specify, by type or kind, those cases to be ordered into or excluded from mediation and neutral evaluation procedures. The State shall not be compelled to participate in a mediation or neutral evaluation procedure with a prison inmate.

(i) Motion to Authorize the Use of Neutral Evaluation Procedures. The parties may move the Commission to authorize the use of a neutral evaluation procedure in lieu of a mediated settlement conference. The Commission may require that such motion be filed on a form provided by the Commission, and such motion shall be filed within 55 days of the filing of a Form 33 Request for Hearing, or otherwise within 21 days of the order requiring a mediated settlement conference entered pursuant to Rules 1(c) and 1(d), and shall state:

1.      that all parties consent to the motion.

2.      that the neutral and the parties have agreed upon the selection and all terms of compensation of the neutral selected;

3.      the name, address and telephone number of the neutral selected by the parties;

4.      the names of all persons and entities the parties have agreed to excuse from attending the proceeding; and

5.      such other information as may be required by the Commission.

If the parties are unable to agree to the selection of a neutral or the persons excused from attending, then the Commission shall deny the motion for authorization to use a neutral evaluation procedure and the parties shall attend the mediated settlement conference as originally ordered by the Commission. If the parties are able to timely agree on the above matters, then the Commission may order the use of a neutral evaluation proceeding. Provided, however, that the Commission will not order the use of a neutral evaluation proceeding in any case in which the plaintiff is not represented by counsel.

(j) Cases Involving Plaintiffs Not Represented by Counsel. Unless an unrepresented plaintiff requests that the plaintiff’s case be mediated, the Commission shall enter an order dispensing with mediation.

(a) By Agreement of Parties. The parties may choose a mediator certified by the Dispute Resolution Commission by agreement within 55 days of the filing of a Form 33 Request for Hearing, or otherwise within 21 days after the Commission’s order entered pursuant to Rules 1(c) and 1(d), unless otherwise specified therein, subject to the Commission’s authority to remove the mediator selected by the parties for specific reasonable cause. Such stipulation may be transmitted by either party, shall be dated as of the date it is transmitted to the Commission, and must be received by the Dispute Resolution Coordinator within 55 days of the filing of a Form 33 Request for Hearing, or otherwise within 21 days of the mediation order entered pursuant to Rules 1(c) and 1(d). The scheduled date of the mediation conference shall be within 120 days of the mediation order. The stipulation shall include the date of the scheduled mediation, the name, address and telephone number of the mediator selected by agreement, and shall confirm that the mediator is certified by the Dispute Resolution Commission. The 21 or 55 day deadline may be extended by the Dispute Resolution Coordinator upon request of the parties. Any party may waive the 21 or 55 day periods for the selection and suggestion of mediators and request that the Commission immediately appoint a mediator from the Commission’s appointed list.

(b) Appointment by Commission. If the parties fail to notify the Commission of their selection of a mediator within 55 days of the filing of a Form 33 Request for Hearing, or otherwise within 21 days of a mediation order entered pursuant to Rules 1(c) and 1(d), as set forth above, the Commission shall appoint a mediator to hold a mediated settlement conference in that case. The Commission shall appoint mediators from a list of mediators eligible for appointment maintained by the Commission which shall consist of those mediators who attain the qualifications in Rule 8 and request inclusion on such list. In the absence of any suggestions by the parties with regard to the appointment of mediators, mediators shall generally be selected for specific cases by random order or by a system which attempts to assign each mediator to an equal number of cases over a period of time, unless the Commission determines in its discretion that, because of unusual circumstances, a particular mediator should be chosen in a particular case.

If the parties request the approval of a selected mediator after the appointment of another mediator by the Commission, the Commission may require one or more of the parties, or other responsible person(s), to pay a substitution of mediator fee to the Commission of up to $100.00.

(c) Mediator Lists. To assist parties in the selection of mediators by agreement, the Commission shall maintain a list of mediators eligible for appointment by the Commission in compensation and tort cases, and a list of mediators who are not eligible for appointment, but who may be selected by the parties and approved by the Commission. The Commission shall provide copies of these lists to parties on request, and may charge a reasonable fee for maintaining and distributing these lists.

(d) Disqualification of Mediator. Any party may move the Commission for an order disqualifying a mediator. For good cause, such order shall be entered. If the mediator is disqualified, an order shall be entered for the selection of a replacement mediator pursuant to Rule 2. Nothing in this provision shall preclude mediators from disqualifying themselves.

(a) Where Conference Is to Be Held. Unless all parties and the mediator otherwise agree, the mediated settlement conference shall be held in the county where the case is pending. The mediator shall be responsible for reserving a place and making arrangements for the conference and for giving timely notice to all attorneys and unrepresented parties of the time and location of the conference.

(b) When Conference Is to Be Held. Subject to the Commission’s orders, the conference shall be held at the time agreed to by the parties and the mediator, or if the parties do not agree, at the time specified by the mediator.

(c) Request to Extend Date of Completion. A party, or the mediator, may request that the Commission extend the deadline for completion of the conference. The Commission may grant the request and extend the completion deadline by written order.

(d) Recesses. The mediator may recess the conference at any time and may set times for reconvening. No further notification is required for persons present at the recessed conference.

(e) The Mediated Settlement Conference Is Not to Delay Other Proceedings. A mediated settlement conference shall not be cause for the delay of other proceedings in the case, including the completion of discovery, and the filing or hearing of motions, except by order of the Commission. However, no depositions shall be taken following a Commission order requiring mediation until mediation is concluded, except by agreement of the parties or order of the Commission.

(f) Inadmissibility of Negotiations by Parties and Attorneys. Evidence of statements made and conduct occurring in a mediated settlement conference or other settlement proceeding conducted under these rules, whether attributable to a party, the mediator, other neutral, or a neutral observer present at the settlement proceeding, shall not be subject to discovery and shall be inadmissible in any proceeding in the action or other actions on the same claim, except:

1.      In proceedings for sanctions for violations of the attendance or payment of mediation fee provisions of Rules 4 and 7;

2.      In proceedings to enforce or rescind a settlement of the action;

3.      In disciplinary proceedings before the State Bar or any agency enforcing standards of conduct for mediators or other neutrals, including the Industrial Commission; or

4.      In proceedings to enforce laws concerning juvenile or elder abuse.

As used in these rules, the term “neutral observer” includes persons seeking mediator certification, persons studying dispute resolution processes, and persons acting as interpreters. No settlement agreement to resolve any or all issues reached at the proceeding conducted under this subsection or during its recesses shall be enforceable unless it has been reduced to writing and signed by the parties. No evidence otherwise discoverable shall be inadmissible merely because it is presented or discussed in a mediated settlement conference or other settlement proceeding.

(g) Inadmissibility of Mediator Testimony. No mediator, other neutral, or neutral observer present at a settlement proceeding shall be compelled to testify or produce evidence concerning statements made and conduct occurring in anticipation of, during, or as a follow-up to a mediated settlement conference or other settlement proceeding pursuant to these rules in any Industrial Commission case or civil proceeding for any purpose, including proceedings to enforce or rescind a settlement of the action, except to attest to the signing of any agreements, and except proceedings for sanctions for violations of the attendance or payment of mediation fee provisions of Rules 4 and 7, disciplinary hearings before the State Bar or any agency enforcing standards of conduct for mediators or other neutrals, including the Industrial Commission, and proceedings to enforce laws concerning juvenile or elder abuse.

(a) Attendance. The following persons shall physically attend a mediated settlement conference:

1.      Parties.

A.    All individual parties;

B.     Employers. In a workers’ compensation case, a representative of the employer at the time of injury is required to attend only if (1) the employer, instead of or in addition to the insurance company or administrator, has decision-making authority with respect to settlement; or (2) the employer is offering the claimant employment and the suitability of that employment is in issue; or (3) the employer and the claimant have agreed to simultaneously mediate non-compensation issues arising from the injury; or (4) the Commission orders the employer representative to attend the mediation conference.

C.     Any party that is not a natural person or a governmental entity shall be represented at the conference by an officer, employee or agent who is not such party’s outside counsel and who has been authorized to decide on behalf of such party whether and on what terms to settle the action; and

D.    Any party that is a governmental entity shall be represented at the conference by an employee or agent who is not such party’s outside counsel or Attorney General’s Office counsel responsible for the case and who has authority to decide on behalf of such party whether and on what terms to settle the action; provided, if under law, proposed settlement terms can be approved only by a board, the representative shall have authority to negotiate on behalf of the party and to make a recommendation to that board.

2.      Attorneys. The parties’ counsel of record; provided, that appearance by counsel does not dispense with or waive the required attendance of the parties listed above;

3.      Insurance Company Representatives. A representative of each defendant’s primary workers’ compensation or liability insurance carrier or self-insured which may be obligated to pay all or part of any claim presented in the action. Each such carrier or self-insured shall be represented at the conference by an officer, employee or agent who is not such party’s outside counsel and who has the authority to make a decision on behalf of such carrier or self-insured or who has been authorized to negotiate on behalf of such carrier or self-insured and can promptly communicate during the conference with persons who have such decision making authority; and

4.      Other Parties and Persons. By order of the Commission other representatives of parties, employers or carriers who may be obligated to pay all or part of any claim presented in the action not required to attend the conference pursuant to the above rules may be required to attend the conference if the Commission determines that the person’s attendance may be necessary for purposes of resolving the matters in dispute in the subject action. All (i) employers and (ii) carriers who may be obligated to pay all or part of any claim presented in the action and who are not required to attend a mediation conference pursuant to these rules or Commission orders, are nevertheless allowed to attend the mediation conference if they elect to do so. If, during a mediation conference, the mediator determines that the attendance of one or more additional persons is necessary to resolve the matters in dispute in the subject action, the mediator may recess the conference, and then reconvene the conference at a later date and time in order to allow for the attendance of the additional person or persons.

(b) Waiver of Attendance Requirement.

1.      Any party or person required to attend a mediated settlement conference shall physically attend until an agreement is reduced to writing and signed as provided in Rule 4(d), or an impasse has been declared. Any such party or person may have the attendance requirement excused or modified, including the allowance of that party’s or person’s participation without physical attendance:

A.    In the absence of an order by the Dispute Resolution Coordinator, only by agreement of all parties and persons required to attend and the mediator; or

B.     By order of the Dispute Resolution Coordinator, upon motion of a party and notice to all parties and persons required to attend and the mediator.

2.      Appearance by Telephone: The Dispute Resolution Coordinator or the mediator, with the consent of the parties, may in appropriate cases allow a party or insurance carrier representative who is required to attend a mediated settlement conference under these rules to attend by telephone, conference call or speaker telephone, at the discretion of the mediator, provided that the person(s) so attending shall bear all costs of such telephone calls, that the mediator may communicate directly with the insurance representative with regard to the matters discussed in mediation, and that the mediator may set a subsequent conference at which all persons will be required to physically attend. The failure to properly appear by telephone in accordance with this rule may subject the responsible party to sanctions pursuant to Rule 5.

(c) Notice of Mediation Order. Within seven days after the receipt of an order for Mediated Settlement Conference, the carrier or self-insured named in the order shall provide a copy of the order to the employer and all other carriers which may be obligated to pay all or part of any claim presented in the workers’ compensation case or any related third-party tortfeasor claims, and shall provide the mediator and the other parties in the action with the name, address and telephone number of all such carriers.

(d) Finalizing Agreement. If an agreement is reached in the mediation conference, the parties shall reduce the agreement to writing, specifying all the terms of their agreement bearing on the resolution of the dispute before the Industrial Commission, and sign it along with their counsel. The parties may use IC Form MSC8 for this purpose. The execution by counsel of a mediated settlement agreement for an employer or carrier who does not physically attend the mediation conference shall be deemed to be in compliance with this Rule and Rule 502(3)(b) of the Workers’ Compensation Rules of the North Carolina Industrial Commission. By stipulation of the parties and at their expense, the agreement may be electronically or stenographically recorded. All agreements for payment of compensation shall be submitted in proper form for Industrial Commission approval, and shall be filed with the Commission within 20 days of the conclusion of the mediation conference.

(e) Payment of Mediator’s Fee. The mediator’s fee shall be paid at the conclusion of the settlement conference, unless otherwise provided by Rule 7, or by agreement with the Mediator. Sanctions may be assessed if the mediator’s fee is not paid in a timely fashion.

(f) Related Cases. Upon application by any party or person, the Commission may order that an attorney of record, party or representative of an insurance carrier that may be liable for all or any part of a claim pending in an Industrial Commission case shall, upon reasonable notice, attend a mediated settlement conference that may be convened in another pending case, regardless of the forum in which the other case may be pending, provided that all parties in the other pending case consent to the attendance ordered pursuant to this rule. Any disputed issues concerning such an order shall be addressed to the Commission’s Dispute Resolution Coordinator. Unless otherwise ordered, any attorney, party or carrier representative that properly attends a mediated settlement conference pursuant to this rule shall not be required to pay any of the mediation fees or costs related to that mediation conference. Requests that a party, attorney of record, or insurance carrier representative in a related case attend a mediated settlement conference in an Industrial Commission case shall be addressed to the court or agency in which the related case is pending, provided that all parties in the Industrial Commission case consent to the requested attendance.

Rule 4A. Foreign Language Interpreters.

(a) Services of Foreign Language Interpreters Required Unless Waived. When a person who does not speak or understand the English language is required to attend a mediation conference, the person shall be assisted by a qualified foreign language interpreter unless the right to an interpreter is waived by both parties.

(b) Qualifications of Interpreters. To qualify as a foreign language interpreter, a person must possess sufficient experience and education, or a combination of experience and education, speaking, and understanding English and the foreign language to be interpreted, to qualify as an expert witness pursuant to N.C. Gen. Stat. §8C-1, Rule 702.

(c) Notice to Industrial Commission and Opposing Party of Need for Interpreter. Any party who is unable to speak or understand English shall so notify the Industrial Commission and the opposing party, in writing, not less than 21 days prior to the date of the mediation conference. The notice shall state with specificity the language(s) that must be interpreted.

(d) Designation of Interpreter. Upon notice of the need for an interpreter, the employer or insurer shall retain a qualified, disinterested interpreter, either agreed upon by the parties or approved by the Industrial Commission, to assist at the mediation conference.

(e) Interpreter Fees. The interpreter’s fee shall constitute a cost as contemplated by N.C. Gen. Stat. §97-80. A qualified interpreter who appears at a mediation conference shall be entitled to payment of the fee agreed upon by the interpreter and employer or insurer that retained the interpreter. Except in cases where a claim for compensation has been prosecuted without reasonable ground, the fee agreed upon by the interpreter and employer or insurer shall be paid by the employer or insurer. Where it is ultimately determined by the Commission that the request for an interpreter was unfounded, attendant costs may be assessed against the movant.

(f) Interpreter Ethics. Foreign language interpreters shall abide by the code of ethical conduct for court interpreters promulgated by the North Carolina Administrative Office of the Courts and adopted by the Industrial Commission and shall interpret, as word for word as is practicable, without editing, commenting, or summarizing, testimony or other communications.

If a person or party whose attendance is required by Rule 4 fails to attend, or cancels without Commission approval, a duly ordered mediated settlement conference without good cause, or otherwise violates these rules without good cause, the Commission may impose upon the party or his principal any lawful sanction, including but not limited to the payment of attorneys’ fees, mediator fees and expenses incurred by persons attending the conference, contempt, or any other sanction authorized by Rule 37(b) of the Rules of Civil Procedure. Any sanctions that may be assessed against a party under these rules including, but not limited to, mediation conference postponement fees and sanctions for the unauthorized cancellation or failure to appear at a mediation conference, may be assessed against the party or the party’s principal or attorney depending on whose conduct necessitated the assessment of sanctions.

(a) Authority of Mediator.

1.      Control of Conference. The mediator shall at all times be in control of the conference and the procedures to be followed. Except as set forth in these rules, there shall be no audio, video, electronic or stenographic record made of the negotiations or discussions that occur at the mediated settlement conference.

2.      Private Consultation. The mediator may meet and consult privately with any party or parties or their counsel prior to or during the conference. The fact that private communications have occurred with a participant shall be disclosed to all other participants at the beginning of the conference.

3.      Scheduling the Conference. The mediator shall make a good faith effort to schedule the conference at a time that is convenient with the parties, attorneys and mediator. In the absence of agreement, the mediator shall select the date for the conference.

(b) Duties of Mediator.

1.      Information to the Parties. The mediator shall define and describe the following to the parties at the beginning of the conference:

A.    The process of mediation;

B.     The differences between mediation and other forms of conflict resolution;

C.     The costs of the mediated settlement conference;

D.    The facts that the mediated settlement conference is not a trial or hearing, the mediator is not acting in the capacity of a Commissioner or Deputy Commissioner, the mediator will not act in the capacity of a Commissioner or Deputy Commissioner in the subject case at any time in the future, and the parties retain their right to a hearing if they do not reach a settlement;

E.     The circumstances under which the mediator may meet alone with either of the parties or with any other person;

F.      Whether and under what conditions communications with the mediator will be held in confidence during the conference;

G.    The inadmissibility of conduct and statements as provided by Rule 408 of the Evidence Code and Rule 3(f) above ;

H.    The duties and responsibilities of the mediator and the parties; and,

I.       The fact that any agreement reached will be reached by mutual consent of the parties.

2.      Disclosure. The mediator has a duty to be impartial and to advise all parties of any circumstances bearing on possible bias, prejudice or partiality.

3.      Declaring Impasse. It is the duty of the mediator to timely determine when mediation is not viable, that an impasse exists, or that mediation should end.

4.      Reporting Results of Conference. In all cases within the Commission’s jurisdiction, whether mediated voluntarily or pursuant to an order of the Commission, the mediator shall report the results of the conference on a form provided by the Commission. If an agreement was reached, the report shall state whether the issue or matter under mediation will be resolved by Industrial Commission form agreement, compromise settlement agreement, other settlement agreement, voluntary dismissal or removal from the hearing docket, and shall identify the persons designated to file or submit for approval such agreement, or dismissal. The mediator shall not attach a copy of the parties’ memorandum of agreement to the mediator’s report transmitted to the Commission and, except as set forth above or as may be ordered by the Commission, the mediator shall not disclose the terms of settlement in the mediator’s report. The Commission may require the mediator to provide statistical data for evaluation of the mediated settlement conference program on forms provided by the Commission.

5.      Scheduling and Holding the Conference. It is the duty of the mediator to schedule the conference, in consultation with the parties, and conduct it prior to the conference completion deadline set out in the Commission’s order, and prior to the date of any hearing before a Deputy Commissioner if the case is scheduled for hearing after the mediator is appointed. Deadlines for completion of the conference shall be strictly observed by the mediator unless said time limits are changed by the Commission.

6.      Standards of Conduct. All mediators conducting mediation conferences pursuant to these rules shall adhere to the Standards of Conduct for Mediators adopted by the N.C. Dispute Resolution Commission.

(a) By Agreement. When the mediator is stipulated to by the parties, compensation shall be as agreed upon between the parties and the mediator.

(b) By Commission Order. When the mediator is appointed by the Commission, the mediator’s compensation shall be as follows:

1.      Conference Fees. The mediator shall be paid by the parties at the rate of $150.00 per hour for mediation services at the conference.

2.      Administrative Fees. The parties shall pay to the mediator a one time, per case administrative fee of $150.00, unless otherwise ordered by the Commission. The mediator’s administrative fee shall be paid in full unless, within 10 days after the date that the mediator has been appointed, written notice is given to the mediator and the Dispute Resolution Coordinator that the issues for which a request for hearing had been filed have been fully resolved or the hearing request has been withdrawn.

3.      Postponement Fees. As used herein, the term “postpone” shall mean to reschedule or otherwise not proceed with a scheduled mediation conference after that conference has been scheduled to convene on a specific date. After a conference is scheduled to convene on a specific date it may not be postponed without the requesting party first notifying all other parties concerning the grounds for the requested postponement, or without the consent and approval of the mediator or the Dispute Resolution Coordinator. If a mediation conference is postponed without good cause, the mediator shall be paid a postponement fee unless, upon application of the party or parties charged with the fee, the fee is waived by the Commission. Unless the Commission otherwise orders, the postponement fee shall be $300.00 if the mediation conference is postponed within seven calendar days of the scheduled conference, and $150.00 if the mediation conference is postponed more than seven calendar days prior to a scheduled conference. Postponement fees shall be allocated in equal shares to the party or parties requesting the postponement unless otherwise ordered by the Commission.

4.      The settlement of a case prior to the scheduled date for mediation shall be good cause for a postponement provided that the mediator was notified of the settlement immediately after it was reached and the mediator received notice of the settlement at least fourteen (14) calendar days prior to the date scheduled for mediation.

(c) Payment by Parties. Payment shall be due upon completion of the conference; provided, that the State shall be billed at the conference and pay within 30 days of receipt of the billing, and insurance companies or carriers whose written procedures do not provide for payment of the mediator at the conference may pay within 15 days of the conference. Unless otherwise agreed to by the parties or ordered by the Commission, costs of the mediated settlement conference shall be allocated to the parties, as follows: one share by plaintiff(s); one share by the workers’ compensation defendant-employer or its insurer, or if more than one employer or carrier is involved, or if there is a dispute between employer(s) or carrier(s), one share by each separately represented entity; one share by participating third-party tort defendants or their carrier, or if there are conflicting interests among them, one share from each such defendant or group of defendants having shared interests; and, one share by the defendant State agency in a State Tort Claims Act case. Parties obligated to pay a share of the costs shall be responsible for equal shares; provided, however, that in workers’ compensation claims the defendant shall pay the plaintiff’s share of mediation, postponement, and substitution fees, as well as its own. Unless the Dispute Resolution Coordinator enters an Order allocating such fees to a particular party, the fees may be taxed as other costs by the Commission. The defendant shall be reimbursed for the plaintiff’s share of such fees when the case is concluded from benefits that may be determined to be due to the plaintiff, and the defendant may withhold funds from any award for this purpose.

(a) Party Selection. The parties may select any Dispute Resolution Commission-certified mediator as their mediator by mutual consent, with or without the qualifications in (b); provided, that the Commission may, for good cause, bar any persons from holding themselves out as a mediator of cases within its jurisdiction or from receiving a fee for mediation of such cases.

(b) Appointment of Mediators. If parties have agreed or been ordered to mediate, and cannot agree on the selection of a mediator, the Commission shall appoint a mediator from a list of persons who hold current certification from the Dispute Resolution Commission that they are qualified to carry out mandatory mediations in the Superior Courts of the State, and who have filed a declaration with the Commission, on forms provided by it, stating that:

1.      If an attorney, that declarant remains a member in good standing of the North Carolina State Bar;

2.      The declarant agrees to accept and perform mediations of disputes before the Commission with reasonable frequency when called upon for the fees and at the rates of payment specified by the Commission;

3.      If the declarant desires to be appointed by the Commission to mediate workers’ compensation cases, that he or she has completed N.C. State Bar approved continuing legal education course(s) on workers’ compensation law during the previous two years totaling not less than six hours.

A mediator making such declaration shall immediately notify the Commission when any of the facts declared are no longer accurate. The Commission may require a new declaration on a periodic or intermittent basis. The Commission shall delete from such lists any mediator whose certification from the Dispute Resolution Commission has expired or been revoked. The Commission may charge an administrative fee to defray the costs of maintaining said lists and referring cases to mediators.

(c) Mediator Lists. The Commission may maintain and provide to parties separate lists of mediators who have successfully completed mediation training certified by the Dispute Resolution Commission, and who desire to hold mediations in disputes arising under the Workers’ Compensation Act and the State Tort Claims Act.

(d) Failure of Mediator to Appear at Conference. In the event that a mediator fails to appear at a scheduled mediation conference without good cause the mediator shall not be entitled to the administrative fee for the case and may be deleted from the Commission’s list of mediators qualified for appointments for a period of six months.

(a) Nature of Neutral Evaluation. Neutral evaluation is an informal, abbreviated presentation of facts and issues by the parties to an evaluator at an early stage of the case. The neutral evaluator is responsible for evaluating the strengths and weaknesses of the case, providing a candid assessment of liability, settlement value, and a dollar value or range of potential awards if the case proceeds to a hearing. The evaluator is also responsible for identifying areas of agreement and disagreement and suggesting necessary and appropriate discovery.

(b) When Conference Is to Be Held. The provisions applicable to the scheduling of mediation conferences set forth in Rule 3(b) shall also be applicable to neutral evaluation proceedings.

(c) Pre-conference Submissions. No later than 15 days prior to the date established for the neutral evaluation conference to begin, each party may, but is not required to, furnish the evaluator with written information about the case, and shall at the same time certify to the evaluator that they served a copy of such summary on all other parties to the case. The information provided to the evaluator and the other parties hereunder shall be a summary of the significant facts and issues in the party’s case, shall not be more than 10 pages in length, and shall have attached to it copies of any documents supporting the parties’ summary. Information provided to the evaluator and to the other parties pursuant to this paragraph shall not be filed with the Commission.

(d) Replies to Pre-conference Submissions. No later than 5 days prior to the date established for the neutral evaluation conference to begin, any party may, but is not required to, send additional written information not exceeding 5 pages in length to the evaluator, responding to the submission of an opposing party. The response shall be served on all other parties and the party sending such response shall certify such service to the evaluator, but such response shall not be filed with the Commission.

(e) Conference Procedure. Prior to a neutral evaluation conference, the evaluator, if he or she deems it necessary, may request additional written information from any party. At the conference, the evaluator may address questions to the parties and give them an opportunity to complete their summaries with a brief oral statement.

(f) Modification of Procedure. Subject to the approval of the evaluator, the parties may agree to modify the procedures required by these rules for neutral evaluation, or such procedures may be modified by order of the Commission. The modified procedures may include the presentation of submissions in writing or by telephone in lieu of the physical appearance at a neutral evaluation conference, and may also include revisions to the time periods and page limitations concerning the parties’ submissions.

(g) Evaluator’s Duties.

1.      Evaluator’s Opening Statement. At the beginning of the conference the evaluator shall define and describe the following points to the parties:

A.    The facts that the neutral evaluation conference is not a hearing, the evaluator is not acting in the capacity of a Commissioner or Deputy Commissioner, the neutral will not act in the capacity of a Commissioner or Deputy Commissioner in the subject case at any time in the future, the evaluator’s opinions are not binding on any party, and the parties retain their right to a hearing if they do not reach a settlement.

B.     The fact that any settlement reached will be only by mutual consent of the parties.

C.     The process of the proceeding;

D.    The differences between the proceeding and other forms of conflict resolution;

E.     The costs of the proceeding;

F.      The inadmissibility of conduct and statements as provided by Rule 408 of the Evidence Code and Rule 3(f) above; and

G.    The duties and responsibilities of the neutral and the participants.

2.      Oral Report to Parties by Evaluator. In addition to the written report to the Commission required under these rules, at the conclusion of the neutral evaluation conference the evaluator shall issue an oral report to the parties advising them of his or her opinions of the case. Such opinion shall include a candid assessment of liability, estimated settlement values and options, the strengths and `weaknesses of the parties’ claims and defenses if the case proceeds to a hearing. The oral report shall also contain a suggested settlement or disposition of the case and the reasons therefor. The evaluator shall not reduce his or her oral report to writing, and shall not inform the Commission thereof.

3.      Report of Evaluator to Commission. Within 10 days after the completion of the neutral evaluation conference, the evaluator shall submit to the Dispute Resolution Coordinator a written report using a form prepared and distributed by the Commission, stating when and where the conference was held, the names of those persons who attended the conference, whether or not an agreement was reached by the parties, whether the issue or matter will be resolved by Industrial Commission form agreement, compromise settlement agreement, other settlement agreement, voluntary dismissal or removal from the hearing docket, and shall identify the persons designated to file or submit for approval such agreement, or dismissal. The Commission may require the neutral to provide statistical data for evaluation of the settlement conference programs on forms provided by the Commission.

(h) Evaluator’s Authority to Assist Negotiations. If all parties at the neutral evaluation conference request and agree, the evaluator may assist the parties in settlement discussions. If the parties do not reach a settlement during such discussions, however, the evaluator shall complete the neutral evaluation conference and make his or her written report to the Commission as if such settlement discussions had not occurred.

(i) Finalizing Agreement. If before the conclusion of the neutral evaluation conference and the evaluator’s report to the Commission the parties are able to reach an agreement, the parties shall reduce the agreement to writing, specifying all the terms of their agreement bearing on the resolution of the dispute before the Commission, and sign it along with their counsel. By stipulation of the parties and at their expense, the agreement may be electronically or stenographically recorded. All agreements for payment of compensation shall be submitted in proper form for Commission approval, and shall be filed with the Commission within 20 days of the conclusion of the mediation conference.

(j) Applicability of Mediation Rules and Duties. All provisions and duties applicable to mediation settlement conferences set forth in Rules 3 through 7 of these rules which are not in conflict with the provisions and duties of Rule 9 herein shall be incorporated by reference and shall be applicable to neutral evaluation conferences conducted under these rules.

(k) Ex Parte Communications Prohibited. Unless all parties agree otherwise, there shall be no ex parte communication prior to the conclusion of the proceeding between the neutral and any counsel or party on any matter related to the proceeding except with regard to administrative matters.

(l) Adherence to Standards of Conduct for Neutrals. All neutrals conducting neutral evaluation conferences pursuant to these rules shall adhere to any applicable standards of conduct which may be adopted by the N.C. Dispute Resolution Commission.

In the interest of justice, or to comply with the law from time to time as it may be amended or declared, the Commission may waive any requirement of these rules.

Unless otherwise indicated, motions pursuant to these rules shall be addressed to the Commission’s Dispute Resolution Coordinator (unless the applicable order provides otherwise) and served on all parties to the claim and the settlement procedure. Responses may be filed with the Commission within 10 days after the date of receipt of the motion. Notwithstanding the above, for good cause the Commission may act upon oral motions, or act upon motions prior to the expiration of the 10-day response period. Motions will be decided without oral argument unless otherwise ordered. Any appeals from orders issued pursuant to a motion under these rules shall be addressed to the attention of the Commission Chair or the Chair’s designee for appropriate action.

Throughout these rules any reference to the number of days within which any act may be performed shall mean and refer to calendar days, and shall include Saturdays, Sundays and legal holidays. Provided, however, that if the last day (a) to file a motion, (b) to give notice of the selection of a mediator, or (c) for a pro se plaintiff to give notice that the plaintiff requests mediation is a Saturday, Sunday or legal holiday, the motion or notice may be filed or given on the next day that is not a Saturday, Sunday or legal holiday.