Report of the Ad Hoc Dispute Resolution Task Force
(May 22, 2000)

Introduction

In December of 1999, Chief Justice Henry Frye, at the request of the North Carolina Bar Association’s Task Force and several others, appointed an ad hoc Dispute Resolution Task Force. The Chief Justice assigned to the Task Force this mission:

To make written recommendations to me about the best governance structure for all our court-sponsored dispute resolution programs, including both the Superior Court and District Court mediation programs, the arbitration program, and such other programs that serve to defer cases from the trial court to non-adversarial settlement procedures.

Former Chief Justice James Exum chaired the Task Force. The members were Judge Ralph Walker, Judge Catherine Eagles, Judge Burt Aycock, James Drennan, James Gates, Ralph Peeples, John Schafer, and Kathy Shuart. Judge Tom Ross, the Director of the Administrative Office of the Courts, attended the meetings as the Chief Justice’s representative. Miriam Saxon of the Administrative Office served as the staff to the Task Force. Andy Little attended and participated in the Task Force discussions at all but the initial meeting. In addition, Carmon Stuart attended several meetings of the Task Force.

The Task Force met on December 17, 1999; and on February 11, March 31, April 27, and May 15, 2000.

The Task Force has reviewed the state of the current dispute resolution programs in North Carolina. On the fundamental issue of governance all the members of the Task Force agreed that there is a strong need in North Carolina for a single forum to provide for ongoing coordination and policy direction for the court-sponsored dispute resolution programs in the state. The Task Force’s efforts have focused on the best way to structure that single forum to make it an effective mechanism to achieve several goals. Those goals are to:

• Provide a setting for the cross-fertilization of ideas among the perspectives and disciplines represented in the court-sponsored dispute resolution programs

• Facilitate the resolution of issues that arise when court-sponsored programs intersect or when gaps in coverage occur

• Establish a place where innovation or improvements in existing programs can be recognized and fostered

• Insure that issues and problems that arise are handled as promptly as possible

• Provide a forum that fits into the overall structure for court administration in North Carolina

In reaching this decision the Task Force took several specific actions. First, it reviewed the history of dispute resolution governance in North Carolina. Second, it studied the current administration and governance structure for the existing dispute resolution programs. Third, it compiled a list of the programs currently authorized by law in North Carolina and determined which of those programs might be classified as court-sponsored or which have a sufficient connection to the courts to be subject to a proposed governance structure. Those programs are:

1. Mediated settlement conferences in superior court
    
2. Family financial mediated settlement conferences
    
3. Child custody mediation
    
4. Farm nuisance pre-litigation mediation
    
5. Y2K pre-litigation mediation
    
6. Court-ordered arbitration
    
7. Summary jury trials
    
8. Dispute settlement center mediation[Note 1]

(A complete list of the programs examined by the Task Force is listed in the Appendix to this report.) Finally, the Task Force reviewed the governance structures used in other states’ dispute resolution programs. No pattern emerged from that review; each state’s structure was different and seemed to be designed to fit the court system and political context for that state. No one approach used by other states seemed to fit North Carolina’s needs very well.

As a result of these actions, the Task Force decided to recommend a structure that would meet the goals that it established.

Minutes for each meeting and a copy of all documents reviewed by the Task Force are on file with the Administrative Office of the Courts, and may be reviewed upon request to that agency.

Recommendation

The Task Force recommends that the coordination and policy guidance for the court-sponsored dispute resolution programs be provided by the creation of a standing Dispute Resolution Committee (hereafter, Committee) of the State Judicial Council (hereafter, Council). The Task Force’s thinking and recommendation were influenced greatly by the establishment of the Council by the 1999 session of the General Assembly. That Council is to provide a forum to discuss various kinds of issues including providing overall budget direction, case management guidelines, resource projections, and performance standards and assessments for courts and court officials. Its statutory mandates include two that relate specifically to dispute resolution. First, under G.S. 7A-409.1(c), the Council must recommend guidelines for the appropriate form of dispute resolution to be used as a case management tool for each type of case. Second, the Council must monitor the effectiveness of dispute resolution programs under G.S. 7A-409.1(d). The existence of these duties and the desirability of having the dispute resolution programs integrated into other components of the court administration structure led the Task Force to focus on the State Judicial Council as the location for the single forum.

The Task Force recommends that the Judicial Council and its Dispute Resolution Committee be composed in such a way that as many dispute resolution perspectives and disciplines as possible be represented. A detailed recommendation about membership is included later in this report. But it is important to note the role the Task Force envisions for the Council and the Committee. That role is critical to the success of the court-sponsored dispute resolution programs in North Carolina.

The Committee will be structured: (1) to provide a forum for the resolution of inter-program issues and (2) to provide policy guidance for all court-sponsored dispute resolution programs as the need arises. More importantly, it will provide a forum for the raising of larger issues about the future direction of the court-sponsored dispute resolution movement within the North Carolina court system. It is those "big picture" issues that the Task Force envisions the Committee undertaking. The Committee members will be knowledgeable volunteers and their time and expertise will be best suited for this undertaking. That will be their primary duty.

The Committee will also serve as a clearing-house and incubator for rules that affect dispute resolution programs before they are reviewed by the Council and submitted to the Supreme Court for review and adoption. The Task Force believes that the Committee should be the place to which the Supreme Court looks for rule-development. For the process to work effectively, the Committee should obtain rule recommendations from many sources. The entities involved in the day-to-day operation of the various programs are likely to be the most common source of recommended rules and amendments. However, there may also be recommendations from attorneys, neutrals, or customers of the courts. The Committee can also develop the expertise to initiate rule recommendations, but it need not do so to perform a very useful service in this regard.

The Committee will provide a forum to review rule changes to insure that they are consistent with the overall policies that provide direction to the court-sponsored dispute resolution movement in North Carolina. In that regard, the Committee’s independence from the day-to-day operation of any single program will be an advantage. That modest detachment from the operation of any particular program, combined with the substantive expertise the members will bring to the Committee (and will further develop as members) will, in the Task Force’s view, provide the appropriate balance of knowledge and independence for this important task.

In recommending this rule reviewing role for the Committee and the Council, the Task Force had two concerns that it recommends the Council address in determining its operating procedures. First, it does not want the recommended procedure and structure to delay the rulemaking process. Second, it does not want the Council, which will have many significant duties and demands on its time, to be unduly burdened by the system the Task Force recommends. To address those concerns, the Task Force recommends that the Supreme Court consider delegating to the Committee the authority to recommend to the Supreme Court rules that do not involve significant policy issues, or to devise other expedited processes that both speed up the rule review process and ease the burden on the Council.

To sum up: The Committee should concern itself with policy matters, rules development, rule changes, and planning for the future of court-sponsored dispute resolution programs.

The Committee should not direct the operation of the court-sponsored dispute resolution programs. Local court officials who perform basic case management functions for all cases administer those programs. The actual attempt at dispute resolution in a specific case is delivered in various ways. The custody mediation program uses trial court employees or contractors to work with the parents in litigation. Arbitration hearings are presided over and the arbitration decision is rendered by attorneys who are trained by the State to serve as arbitrators and are paid a modest fee for their services from state funds. The various mediated settlement programs use mediators certified by the Dispute Resolution Commission (DRC) to schedule and conduct settlement conferences and those mediators are paid by the parties at an hourly rate set by rule or agreed to by the parties. Each program was established to serve a particular purpose and has administrative expertise in that program. The Task Force did not see a good reason to alter that set of responsibilities.

The DRC should continue to exist and to fulfill its statutory mandate to certify mediators and training programs; to deal with ethical issues; and to provide advice and suggestions on the overall operation of the mediated settlement programs.

To provide some context for this recommendation, the Task Force offers the following examples of how this governance structure might work.

• An applicant seeking to become a mediator applies for certification to the DRC. He is not approved. He is not happy and seeks redress, first by questioning the rule under which he was rejected. To whom does he go to seek an interpretation? He should address his concern about the interpretation of the rule to the DRC. They have the formal, legal power to administer that rule, and the expertise that the General Assembly and court officials believe is necessary to provide a fair regulatory structure to deal with this particular kind of occupational licensing. If he is not happy with the DRC’s interpretation, he may seek review of the DRC’s determination, by, for example, appealing the decision of the DRC administratively. He should not go to the Committee inasmuch as they are not an adjudicatory body. Imagine, however, that the disgruntled applicant wants to have the rule changed. To whom should he go? He may try to go the Committee, but in all likelihood, the Committee will seek the DRC’s advice, since it must administer the rule. That process will be facilitated by the presence on the Committee of the DRC chair and quite likely by the presence of attorneys and judges active in the mediated settlement conference program. The Committee would have the authority to review the rule request and could recommend it to the Council (or directly to the Supreme Court should the Council delegate that authority to the Committee), but not until it has the advice of the DRC. The Task Force believes it is highly likely that rules changes in this area would either originate in or be reviewed by the DRC, and it contemplates that the Committee structure and procedures would encourage or mandate that result. As is true now, however, any party may at any time ask the Court to adopt (or the Council to recommend) a rule without going through any of this review. The Task Force, while recognizing the authority of the Court and the Council, believes its recommended structure will result in better rules over time.

• The General Assembly raises the monetary limit for presumptive assignment of civil cases to district court to $25,000. Who determines if the arbitration program limit should also be raised? This is a case in which the Committee will be the appropriate forum to discuss the pros and cons of making such a recommendation, although again the district and superior court judges, the DRC and the arbitration program administrators will need to be consulted to insure that the best decision will be made in this regard.

• A custody mediator makes inappropriate comments in a mediation session. What is the Committee’s role in disciplining the mediator? None; that is a matter for the local court officials and the AOC, just as the disciplining of mediators is the responsibility of the DRC.

• An arbitrator is rude to parties and does not conduct herself professionally. The litigant comes to the Committee complaining. What is the Committee’s role in handling the dispute? The Committee should notify the litigant that misconduct by an arbitrator is more appropriately handled by the chief district judge and the senior resident superior court judge. If the dispute raises an issue about rule amendment, it would be handled in the same way as the DRC rules, discussed above, although different bodies like the AOC or judges active in the arbitration program might initiate the proposed rule change.

• A district that has a family court pilot project would like to have a more coordinated approach to dispute resolution programs and wants to insure that custody, property and legal issues are handled expeditiously and with a minimum of cost to the parties. Is this an appropriate role for the Committee? Yes, the thinking through of systemic improvements that involve multiple dispute resolution techniques and programs would be a major role for the Committee. It would be up to the Committee to determine how it would approach such an issue—it could use a special subcommittee composed of knowledgeable people from the various programs, it might conduct special hearings devoted to the issue, or it might simply review recommendations and proposals that come from interested parties seeking to advocate a particular change. The Committee’s process would depend on the issue.

• The Dispute Resolution Commission, in fulfilling its duties to certify mediators and educational programs and to monitor the effectiveness of the mediated settlement conference programs, determines that the mediated settlement program rules are not adequately addressing a problem area (attendance of witnesses, scheduling flexibility, minimum fee increases, etc.). Is it precluded from recommending rules to deal with the problem areas? No, in fact, as the body most knowledgeable about mediated settlement conferences, it should take the initiative to recommend appropriate rule changes to the Committee and Judicial Council.

• The legislature asks the Council or the AOC for a report on the effectiveness of all dispute resolution programs mandated by the courts. Does the Committee have a role in that task? Yes; the Council already has a statutory duty to monitor the effectiveness of the programs, and the Committee should be the place where such evaluations are planned, discussed and reviewed. How it accomplishes the task will depend on the availability of staff support, financial resources and other variables.

There are obviously infinite variations on the kinds of issues that will arise. The Task Force believes that the Committee, properly constructed, can provide the right forum to provide policy guidance to the Judicial Council, Supreme Court and program administrators about the major issues facing the court-sponsored dispute resolution movement in North Carolina.

One final concern needs to be addressed—efficiency. The Task Force believes, with an appropriate understanding of the role of the Committee, that its proposed structure will not unduly delay the resolution of issues. While the Council has not yet determined a work pattern, it is likely that the body will meet relatively often. It is also likely that the Council will use committees as an important part of its approach to its work, and as noted in the discussion of rule-making, some matters may be appropriately delegated to the Committee and may not involve the Council at all. This committee will have several characteristics that make it likely that it can provide guidance without undue delay. First, it will have members knowledgeable about all aspects of court-sponsored dispute resolution programs, so they are likely to be efficient at gathering the information needed to conduct Committee business. Second, by deferring to program administrators and the DRC on operational matters, it will have the time to focus on matters of system-wide scope. Third, it will have the detachment from individual programs that will give it credibility in coming up with policy guidance that the Council and Court can have confidence in. The quality and credibility of decisions made using a process like this justify the added cost, if any, in the amount of time necessary to reach a decision.

The Task Force believes that its recommended procedure will work effectively in the context of the newly established State Judicial Council to provide more effective policy guidance for the courts in court-sponsored dispute resolution. But all the entities in the recommendation are newly established, and do not yet have the benefit of experience in addressing these system-wide policy and rule-reviewing needs. Accordingly, the Task Force’s final recommendation is that the Judicial Council and the Chief Justice review this Committee’s charge and operation no later than two years after it is finally established to determine if it is meeting the needs of the public, the courts and the dispute resolution community.

The Task Force’s recommended governance structure was not the only alternative considered. One proposal seriously considered by the Task Force was to create a single agency to carry out the current functions of the DRC as well as the functions that this recommendation would assign to the Committee of the Judicial Council. That single agency, whether as a Council subcommittee or as an independent entity, would coordinate all dispute resolution/settlement programs, handle mediator certification, and make recommendations to the Supreme Court through the Judicial Council on rules, policy and structure for all court-sponsored dispute resolution programs. Documents describing this alternative are included in the minutes on file with the AOC.

That approach would combine in one organization the responsibility for rule generation and ethics determinations with questions of program rules and policy, which some members believe would be a significant advantage. This might avoid the possible problems of duplication, volunteer burnout and turf protection. After much debate, the Task Force ultimately decided to recommend that the Committee limit its focus to providing policy guidance and leave certification and other operational responsibility for specific programs in the entities that now have that responsibility. In the Task Force’s judgment, that allocation of responsibility would better fit the Judicial Council structure and mode of operation and would provide a more effective means to obtain system wide policy guidance. But the Task Force recognizes that its recommendations may not work in the manner contemplated by this report. If problems materialize, the Task Force believes that structural modifications should be considered; accordingly, it recommends the review described above. The review should be wide-ranging and should involve the opportunity for input from the Committee, the DRC, the AOC, court officials and any other interested parties.

Committee Membership

The composition of the Committee is very important to insure that it can fulfill its mission. The Task Force recommends that the Committee be composed as follows:

• A judge of the North Carolina Court of Appeals, recommended by the Chief Judge of that court

• Two superior court judges, serving staggered terms

• Two district court judges, serving staggered terms

• The Chair of the Dispute Resolution Commission or his designee from among the Commission’s members

• Seven attorneys licensed to practice in NC, at least two of whom should be neutrals, recommended by the President of the NC Bar Association, serving staggered terms

• A custody mediator

• A trial court administrator

• A person active in the work of community settlement centers, who shall not be an attorney

• Two professors knowledgeable about dispute resolution, serving staggered terms

• The Director of the Administrative Office of the Courts or his designee

• Two citizens interested in dispute resolution programs, who would not be eligible for appointment in any other category, serving staggered terms

• Two members of the Judicial Council

The Chief Justice, as chair of the Judicial Council, makes all appointments and designates a person to serve as chair, and may designate a person to serve as vice-chair or co-chair. Except for ex-officio members (AOC Director, DRC Chair, and Council members), all terms are for four years. No person may serve for two successive full terms, although a person appointed to complete an unexpired term may serve a full term upon completion of the unexpired term. The fact that a person serves on the Dispute Resolution Commission or in any other official capacity in an activity related to a dispute resolution program does not disqualify that person from serving on the Committee if the person is otherwise qualified to serve.

The Committee is encouraged to establish liaisons with any groups interested in court-sponsored dispute resolution programs, such as the Fourth Circuit mediation program, the Industrial Commission’s mediation program, the Office of Administrative Hearing’s mediation program, and the Mediation Network of North Carolina.

The Committee should be established by formal vote of the Council and by rule of the Supreme Court to insure that its mission is clearly stated and widely publicized.

LEGISLATIVELY SANCTIONED
ADR PROGRAMS IN NORTH CAROLINA

1. MEDIATION
    
1. Mandatory Programs of Statewide Application
    
1. Superior Court Mediation: Mediated Settlement Conferences
    

Statutory Authority: N.C.G.S. §7A-38.1; implemented by rules adopted by the North Carolina Supreme Court

Oversight: North Carolina Dispute Resolution Commission (§7A-38.2(b))

Jurisdiction: Any filed civil action in the superior court

Function: A statewide program of mediation in the superior court. The senior resident superior court judge may order the parties in any pending civil action to participate in a mediated settlement conference.

Local variations: Rule 10 of the Supreme Court’s mediated settlement conference rules authorizes the senior resident superior court judge to publish local rules not inconsistent with the enabling legislation and the rules.

2. Equitable Distribution, Alimony and Support
    

Statutory Authority: N.C.G.S. §7A-38.4; §50-21(d)

Oversight: North Carolina Dispute Resolution Commission (§7A-38.4(l))

Jurisdiction: Any pending action in district court involving issues of equitable distribution, alimony or support.

Function: A pilot program of mediation. The district court may order a mediated settlement conference "or another settlement procedure," for contested issues of equitable distribution, support, or alimony.

3. Child Custody and Visitation Mediation
    

Statutory Authority: N.C.G.S. §7A-494, §50-13.1(b)

Oversight: The Administrative Office of the Courts (§7A-495(a)), assisted by a Custody Mediation Advisory Committee (§7A-495(b))

Jurisdiction: Cases involving unresolved issues about the custody or visitation of minor children.

Function: Authorized statewide, but not fully implemented. When custody or visitation rights of a minor child are in dispute, the matter is to be set for mediation unless the district court specifically waives the mediation requirement.

4. Industrial Commission Mediation
    

Statutory Authority: N.C.G.S. §97-80(c), §143-296, and the rules for mediated settlement conferences adopted by the North Carolina Industrial Commission

Oversight: The Industrial Commission

Jurisdiction: Worker’s compensation claims

Function: The Industrial Commission may order any contested worker’s compensation case to mediation.

Note: Rule 9 specifically authorizes the use of neutral evaluation.

2. Mandatory Programs With Specialized Applications
    
1. Pre-litigation Mediation of Farm Nuisance Disputes
    

Statutory Authority: N.C.G.S. §7A-38.3 and the rules of the North Carolina Supreme Court implementing the farm nuisance mediation program.

Oversight: None stated. However, the mediation is to be conducted in accordance with the Supreme Court’s superior court mediated settlement conference rules (§7A-38.3(e)).

Jurisdiction: Farm nuisance disputes.

Function: The statute requires mediation as a condition to filing a civil action involving a farm nuisance dispute. "Farm nuisance dispute" is defined as a claim that the farming activity in question constitutes a nuisance.

2. Pre-litigation Mediation of Y2K Disputes
    

Statutory Authority: N.C.G.S. §66-283, as well as §§7A-38.1 and 7A-38.2, and the superior court mediated settlement conference rules of the Supreme Court.

Oversight: The North Carolina Dispute Resolution Commission

Jurisdiction: Applies to any claims for damages allegedly resulting from a Year 2000 problem.

Function: Before a civil action seeking damages from a Year 2000 dispute can be filed, mediation must be attempted. Pre-litigation mediation is initiated by the claimant.

3. Disputes Between Local Boards of Education and the Board of County Commissioners
    

Statutory Authority: N.C.G.S. §115C-431

Oversight: None stated

Function: Mediation is to be used in disputes between a local board of education and the board of county commissioners, regarding local school appropriations. The mediator is to be appointed by the senior resident superior court judge unless the two boards agree on a mediator.

4. Administrative Hearings
    

Statutory Authority: N.C.G.S. §150B-23.1

Oversight: The chief administrative law judge

Jurisdiction: Contested cases, arising out of a dispute between a state agency and another person.

Function: A mediation program in the Office of Administrative Hearings. The chief administrative law judge may require the parties to attend a pre-hearing settlement conference, conducted by a mediator.

Note: The pre-hearing settlement conference is to be conducted in accordance with the rules of the Supreme Court adopted "under §7A-38." However, §7A-38 was repealed in 1995.

3. Voluntary Programs With Specialized Applications
    
1. Appeals of Special Education Determinations
    

Statutory Authority: N.C.G.S. §115C-116(b)

Oversight: None stated, but the mediator selected is encouraged to follow the superior court mediated settlement conference rules of the Supreme Court

Function: Mediation of disputes between parents of children with special needs and the local public school is encouraged, but not required. The Department of Public Instruction is required to maintain a list of certified mediators with appropriate special training.

2. Contested Case Hearings for Assaultive and Violent Children
    

Statutory Authority: N.C.G.S. §122C-197

Oversight: None stated

Function: The statutory language encourages the use of voluntary mediation, initiated by parent, guardian or advocate, which may be attempted prior to filing a petition for contested case review of an eligible assaultive and violent child.

3. Disputes Involving the Chartering of Charter Schools
    

Statutory Authority: N.C.G.S. §115C-238.29G(c)

Oversight: None stated, but the mediation is to be conducted in accordance with "rules and standards of conduct adopted under Chapter 7A of the General Statutes."

Function: Chartering disputes between a charter school and the State Board of Education may be mediated, if both sides agree.

4. North Carolina Milk Commission
    

Statutory Authority: N.C.G.S. §§106-266.8(4), 44-69(e).

Oversight: None stated

Function: The North Carolina Milk Commission is authorized to act as a mediator or arbitrator in disputes between milk distributors and producers.

5. Labor Disputes—Conciliation Through the Commissioner of Labor
    

Statutory Authority: N.C.G.S. §95-36

Oversight: None stated

Function: The Commissioner of Labor may order a conciliator from the state Department of Labor to attempt settlement of a labor dispute, using mediation.

6. Copies of Public Records
    

Statutory Authority: N.C.G.S. §132-6.2(b)

Oversight: None stated

Function: In the event of a dispute over the fee charged by a public agency for a copy of a public record, the requester may ask the Information Resources Management Council to mediate the dispute.

7. Prison Inmate Grievances
    

Statutory Authority: N.C.G.S. §148-118.8

Oversight: None stated

Function: The statute authorizes the appointment of grievance examiners by the Grievance Review Board. Grievance examiners are directed to investigate inmate grievances, and are to attempt to resolve grievances through mediation with all parties.

4. Official Encouragement of the Use of Mediation
    
1. Basic Education Program

   Statutory Mention: N.C.G.S. §115C-81(a4)

   Function: The State Board of Education is directed to develop a list of recommended conflict resolution and mediation materials, including information about peer mediation, to be made available to local schools by 1994.

2. Victim-Offender Mediation
    

Statutory Mention: N.C.G.S. §7B-1706

Function: Victim-offender mediation is one of the diversion options that juvenile offender intake counselors may invoke.

3. Public Building Contracts
    

Statutory Authority: N.C.G.S. §143-28(e)

Oversight: None stated

Function: Whenever separate contracts are awarded for a public building project, the public body may, in the contract documents, provide for the use of ADR, including mediation and/or arbitration.

5. Special Statutory Recognition
    
1. Community Mediation Centers
    

Statutory Authority: N.C.G.S. §7A-38.5

Jurisdiction: Community mediation centers set their own standards as to the types of disputes they will mediate. Typically, a significant portion of their case load comes from referrals from the district courts’ criminal docket.

Oversight: None stated, but all centers receiving state funds must file annual reports with the Judicial Department (§7A-346.1)

Function: District court judges and district attorneys are directed to encourage mediation through community mediation centers when they determine that mediation is an appropriate alternative.

2. ARBITRATION
    
1. State-wide Programs of General Application
    
1. The Uniform Arbitration Act
    

Statutory Authority: N.C.G.S. §1-567.1 et seq.

Jurisdiction: The Act applies to any written agreement to arbitrate, unless the agreement specifically provides that the Act is not to apply. The Act does not apply to arbitration agreements between employer and employee unless the agreement expressly so provides (§1-567.2).

Function: The Uniform Arbitration Act makes enforceable written agreements to arbitrate disputes. The written agreement may be entered into either before or after a specific dispute arises. The Act also makes an arbitrator’s award enforceable as a judgment of the court, upon judicial confirmation of the award.

2. Court-Ordered Arbitration
    

Statutory Authority: N.C.G.S. §7A-37.1 and the rules for court-ordered arbitration adopted by the North Carolina Supreme Court

Oversight: The Administrative Office of the Courts (§74-37.1(d))

Jurisdiction: The program applies to all civil actions in which the claim does not exceed $15,000. The Supreme Court Rules exclude certain other types of actions, such as those involving title to real estate, family law issues, and wills and decedents’ estates.

Function: A program of mandatory, but non-binding arbitration conducted through the courts, by specially trained attorney-arbitrators.

Note: The program is authorized for state-wide use. It presently is in operation in approximately two-thirds of the state’s counties, and one-half of the state’s judicial districts.

3. Family Law Arbitration
    

Statutory Authority: N.C.G.S. §50-41 et seq.

Oversight: None stated, but the courts will enforce arbitral agreements and awards.

Jurisdiction: The statute potentially applies to all controversies arising out of the marital relationship, except the divorce itself. Prior to marriage, the parties may agree to submit any controversy to arbitration, arising out of the marital relationship, except for child custody or child support, and the divorce itself. During or after the marriage, the parties may agree to submit any controversy to arbitration, arising out of the marital relationship, except for the divorce itself.

Function: The statute authorizes the parties to a marriage to submit disputes to arbitration, subject to the limits described above. The decision to arbitrate disputes is voluntary, but once entered into the agreement to arbitrate is enforceable through the courts.

Coordination with Family Mediation: §7A-38.4(h) recognizes the right of the parties to participate in ADR techniques other than mediation, such as arbitration.

Note: §50-54(a)(8) permits the parties to provide for judicial review of errors of law in the arbitral award, in the agreement to arbitrate.

2. Programs of Specialized Application
    
1. International Commercial Arbitration
    

Statutory Authority: N.C.G.S. §1-567.31 et seq.

Oversight: None stated

Jurisdiction: The statute applies to international commercial arbitration, subject to any applicable international agreement in force. For the most part, the statute only applies if the place of arbitration is in the state of North Carolina.

Function: The statute recognizes, authorizes, and provides a means of enforcement for, international commercial arbitration conducted within the state.

Note: The statute also authorizes the use of conciliation as a means of resolving international commercial disputes.

2. North Carolina Milk Commission

   Statutory Authority: N.C.G.S. §§106-266.8(4), 44-69.3

   Oversight: None stated

   Function: The Milk Commission is authorized to arbitrate disputes between milk producers and distributors.

3. Public Utilities Commission
    

Statutory Authority: N.C.G.S. §62-40

Oversight: None stated

Function: If the parties agree, the Public Utilities Commission may arbitrate disputes between a public utility and "another person." The award is binding, and has the same effect as a judgment of the superior court.

4. The North Carolina State Bar Fee Arbitration Program
    

Statutory Authority: N.C.G.S. §84-23; §D.0700 and §E.0400 of the Rules of the North Carolina State Bar

Oversight: The Council of the North Carolina State Bar

Function: The State Bar is authorized to establish a program of fee arbitration, between lawyers and clients (§D.0700 of the Rules) and between lawyers within law firms (§E.0400 of the Rules).

5. Voluntary Arbitration of Labor Disputes
    

Statutory Authority: N.C.G.S. §§95-36.1 et seq.

Oversight: The North Carolina Department of Labor

Function: Written agreements to arbitrate labor disputes are enforceable, as are the awards subsequently rendered. The Commissioner of Labor is authorized to adopt appropriate rules of procedure for the arbitration of labor disputes (§95-36(c)).

6. Multi-County School Districts: Selection of School Location
    

Statutory Authority: N.C.G.S. §115C-510

Oversight: None stated

Function: Arbitration is to be used in the event a disagreement arises between two or more county school boards, as to the location of a schoolhouse, after a multi-county school district has been approved by the voters.

7. Compensation of County Employees
    

Statutory Authority: N.C.G.S. §153A-92

Oversight: None stated

Function: If the board of county commissioners reduces the compensation of employees assigned to an elected official, and the reduction does not apply to all county departments, the elected official must consent to the reduction in compensation. If the official does not consent, the dispute may be referred to arbitration by either the board of county commissioners or the elected official. Arbitration is to be conducted by the senior resident superior court judge of the superior court district.

3. Other Statutory Uses of Arbitration
    
1. Precautionary Safety Arrangements for Overhead High-Voltage Lines
    

Statutory Authority: N.C.G.S. §95-229.10

Oversight: None stated

Function: In the event of a dispute between the owner or operator of high-voltage lines and the person or entity responsible for installing the precautionary safety arrangements over the amount of payment due, "arbitration or other legal means" may be invoked to resolve the dispute.

2. Public Building Contracts
    

Statutory Authority: N.C.G.S. §143-128

Oversight: None stated

Function: Whenever separate contracts are awarded for a public building, the public body may, in its contract documents, provide for the use of ADR techniques such as mediation and/or arbitration.

3. OTHER DISPUTE RESOLUTION TECHNIQUES
    
1. Summary Jury Trials
    

Statutory Authority: Rule 23 of the General Rules of Practice for the Superior and District Courts

Oversight: The senior resident superior court judge

Function: The court may order the use of a summary jury proceeding, upon such terms and conditions as the court deems appropriate. The procedure is voluntary. Both parties must agree to its use.

2. Ombudsman
    
1. Long-Term Care Ombudsman Program
    

Statutory Authority: N.C.G.S. §§143B-181.15 et seq.

Oversight: Secretary of Health and Human Services, Division of Aging

Function: The State Long-Term Care Ombudsman is directed to promote community involvement with long-term care providers and residents; to serve as a liaison between residents, their families, and facility staff; to certify Regional Long-Term Care Ombudsmen; and to attempt to resolve complaints using, whenever possible, mediation, conciliation, and persuasion.

2. Industrial Commission Ombudsman Program
    

Statutory Authority: N.C.G.S. §97-97(f)

Oversight: The Industrial Commission

Function: The Industrial Commission is directed to establish an ombudsman program to assist pro se claimants and employers. The assistance provided is not to include representation at compensation hearings.

3. Office of Local Government Advocacy
    

Statutory Authority: N.C.G.S. §143-506.14(e)(3)

Oversight: Office of the Governor

Function: The Office of Local Government Advocacy is authorized, among other things, to function as an ombudsman for the resolution of local government problems.

4. Air Quality Compliance Panel- Ombudsman for the Small Business Stationary Source Technical and Environmental Compliance Assistance Program
    

Statutory Authority: N.C.G.S. §143B-318(g)

Oversight: Department of Environment and Natural Resources

Function: The Secretary of Environment and Natural Resources is directed to establish an office in the department to serve as ombudsman for the Small Business Stationary Source Technical and Environmental Compliance Assistance Program, consistent with the requirements of the 1990 amendments to the federal Clean Air Act.

3. Fact-Finding
    

Dismissal or Demotion of Career Teachers and Administrators: Case Managers

Statutory Authority: N.C.G.S. §115C-325(h1), (i1)

Oversight: State Superintendent of Public Instruction

Function: Case managers (who are required either to be certified superior court mediators or members of the American Arbitration Association’s roster of arbitrators and mediators) are authorized to conduct a fact finding hearing and to make recommendations to the local board of education, in contested dismissal or demotion cases. The decision whether to use a case manager is the career teacher/administrator’s to make.

4. Med-Arb
    

Hazardous Waste Management Commission- Negotiation, Mediation and Arbitration

Statutory Authority: N.C.G.S. §130B-21

Oversight: None stated

Function: The statute authorizes a form of "med-arb." If efforts at negotiation and mediation fail after six months, over a siting decision, issues of compensation to local governments for substantial economic impact, reimbursement of costs incurred, and other operation-related concerns may be arbitrated, pursuant to the Uniform Arbitration Act (N.C.G.S. §§1-567.1 et seq.).

Note

1. Dispute settlement centers are independent organizations. They are funded by a combination of sources that include grants, user fees, state and local government funding and charitable contributions. In addition, they are governed by nonprofit boards of directors. However, they are included in this list for several reasons. First, a significant amount of State funds goes to these centers, and comes through the budget of the Judicial Department, administered by the AOC. Second, this State money comprises a substantial amount of most centers’ operating budgets. Finally, although parties to court actions are not required to resolve their disputes in mediation conducted through these centers, their participation is often ordered or strongly encouraged by court officials or prosecutors.

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N.C. Industrial Commission · Mediation Section · 4342 Mail Service Center · Raleigh, NC 27699-4342
Phone:  (919) 733-2030 · Fax:  (919) 715-0282
Internet Address:  http://www.comp.state.nc.us/