MSC Resources - Superior Court

Forms, rules, mediator ethics, and court contacts.

MSC Brochure

Mediated Settlement Conference Brochure
Mediated Settlement Conference Brochure (Spanish)

MSC Rules and Statute

The Rules for Mediated Settlement Conferences and Other Settlement Procedures in Superior Court Civil Actions (MSC Rules) were first adopted by the Supreme Court in 1991, N.C. Gen. Stat. § 7A-38.1. The Rules provide a framework for expediting settlement of superior court civil actions. The MSC Rules revisions are effective May 1, 2023.

MSC Forms

Forms for Mediated Settlement Conferences

Forms for Other Available Superior Court Dispute Resolution Procedures (Neutral Evaluation, Arbitration, Summary Jury Trial (Jury or Non-Jury)

MSC Mediation Coordinators

Searchable Directory of MSC Mediation Coordinators

Standards of Professional Conduct

Standards of Professional Conduct for Mediators

Advisory Opinion Policy

The Commission appreciates that mediators sometimes need assistance in interpreting the Standards of Professional Conduct for Mediators or program rules and applying them to ethical or other dilemmas that may arise in the course of a mediation practice. In an effort to provide guidance, the Commission has adopted its Advisory Opinion Policy. The Policy provides:

  • For mediators to contact Commission staff, when time is of the essence, to obtain informal guidance in response to Standards and rule interpretation questions. The discussion and any guidance provided will be logged in for reference in the event should be  complaint is filed; and
  • For mediators to seek formal Advisory Opinions from the Commission in response to ethical or rule interpretation questions/dilemmas that have arisen in connection with mediation practices. Advisory Opinions issued to date are posted on this website.

Summary of Advisory Opinions

Full text of Advisory Opinions

Mediator Request for Advisory Opinion Form

Advisory Opinion Number Summary of Advisory Opinion
AO 43 (2022) Mining Metadata and Recording the Conference, Rule 4
The mediator or a party to a mediated settlement conference shall not mine metadata from a mediated settlement conference or record the mediated settlement conference.
AO 42 (2021) Settlement Authority and Signing the Agreement, N.C.G.S. § 7A-38.1(l)
When a party is absent from a mediation, the mediator shall inquire about settlement authority at the beginning of the conference. When a party is not physically present, the mediator shall verify any designee signing an agreement has written authority to do so.
AO 41 (2021) Notifying Lienholders, Rule 4(b)
The mediator does not owe a duty to a lienholder unless the lienholder becomes a participant in the mediated settlement conference. Under the Rules for Mediated Settlement Conferences and Other Settlement Procedures in Superior Court Civil Actions, Rule 4(b), the attorneys or parties shall notify the lienholder of the scheduled mediation.
AO 40 (2020) Mediator Accepting Role as a Parenting Coordinator, Standard 7
A mediator shall not serve as a Parenting Coordinator for parties after mediating the same cause of action for the parties.
AO 39 (2018) A Mediator’s Duty, Rule 6
Mediators shall actively and effectively manage their cases by scheduling and holding the mediated settlement conference and by timely filing the Report of Mediator.
AO 38 (2018) Exclusion of Evidence of Negotiations in Separate Proceeding, N.C.G.S. § 7A-38.4A
Evidence of offers made and rejected during a mediated settlement conference may not be introduced in support of a motion for attorney’s fees in the same action. Such a motion is a “proceeding in the action” and therefore, evidence of statements made in the conference is barred by N.C.G.S. §7A-38.4A. The use of the mediator’s notes is also barred by the statute.
AO 37 (2018) Designation of Mediator, Rule 2(a)
Only a party, or a party’s counsel, may complete the Designation of Mediator form. A mediator shall not pre-populate a Designation of Mediator form with their information and distribute the form to the parties or their counsel.
AO 36 (2018) AO 36 has been archived September 20, 2024; Substantive content included in AO 33.
AO 35 (2018) AO 35 has been archived September 20, 2024; Substantive content included in AO 42 and AO 24.
AO 34 (2018) Mediator Conducting Simultaneous Mediations and Billing Full Rate for Each Mediation, Standard 7
A mediator shall not conduct simultaneous mediations and bill their full rate for each mediation.
AO 33 (2016) Gift Giving, Standard 7(h)
A mediator shall not give or receive a gift to or from a party or representative of a party in return for a referral or due to an expectation of referral of clients for mediation services.
AO 32 (2016) The best practices for a mediator conducting a mediated settlement conference where at least one participant is a non-English speaking self-representing party are defined within the AO.
AO 31 (2015) Reducing an Agreement to Writing When One or More Parties are Self-Represented, Standards 4, 5, 6 and 8
Mediators may not prepare a settlement agreement for self-represented parties but should facilitate the parties having an attorney prepare a settlement agreement.
AO 30 (2014) Mediator Testimony in Hearing on Motion to Enforce Settlement, N.C.G.S. § 7A-38.1(l)
A mediator may not testify or produce evidence in a proceeding to enforce a mediated settlement agreement, regardless of whether there is an objection to such evidence, except “to attest to the signing of any agreements.” Such testimony or evidence is barred by N.C.G.S. § 7A-38.1(l).
AO 29 (2014) Testimony in Related Criminal Proceeding, N.C.G.S. § 7A-38.1(l)
N.C.G.S. § 7A-38.1(l) bars the admission of statements made and conduct occurring in a mediated settlement conference “in any proceeding in the action or other civil actions on the same claim.” A criminal proceeding related to the mediated claim does not fall under the inadmissibility provisions of the statute, and therefore such evidence may be admitted in the criminal proceeding.
AO 28 (2013) Preparing a Separation Agreement of Other Settlement Document, Standard 6
Mediator may not prepare a separation agreement or other settlement document nor file a court action for either or both of the parties.
AO 27 (2013) Scheduling the Conference and Inability to Pay, Rule 6(b)(5) and Rule 7(e)
Mediators have a duty to schedule and hold a settlement conference without engaging the parties in discussion about their ability to pay.
AO 26 (2013) A mediator conducting a mediated settlement conference where a participant has filed a notice of appeal shall contact court staff only as to whether the matter is stayed upon appeal.
AO 25 (2013) Attendance at a Mediated Settlement Conference by an unrepresented Corporation, Rule 4
The mediator is not required to police the attendance issues and may allow an unrepresented corporation to participate and attend a mediation under Rule 4.
AO 24 (2013) Attendance at a Mediated Settlement Conference by an Out-Of-State Attorney Representing a Party at the Mediated Settlement Conference, Rule 4
The mediator is not required to police the attendance issues and may allow parties not required to attend under Rule 4 to participate and attend a mediated settlement conference.
AO 23 (2012) Mediator Testimony in State Bar Disciplinary Proceeding, N.C.G.S. § 7A-38.1(l)
Absent a subpoena, a mediator may not speak to a State Bar investigator concerning conduct occurring during a mediated settlement conference by an attorney whose client has filed a grievance against the attorney. However, pursuant to an exception set out in N.C.G.S. § 7A-38.1(l), the mediator may be compelled to testify in a disciplinary proceeding before the State Bar.

If a State Bar investigator contacts a mediator about the attorney-mediator’s own behavior, the mediator must respond, with certain exceptions relating to lawyer-client confidentiality, to the investigator’s questions, even when there is not a subpoena.
AO 22 (2012) Duty of Confidentiality Applies to Mediator Only, Standard 3
Standard 3 of the Standards of Professional Conduct for Mediators places a duty of confidentiality on certified mediators and no one else involved in the mediation process. Attorneys and other participants do not have a duty of confidentiality, and mediators should be careful not to conflate the concepts of inadmissibility and confidentiality when explaining the mediation process to participants.
AO 21 (2012) Mediator’s Fee, Rule 7
A court-appointed mediator may charge the hourly court-appointed rate for reviewing documents prior to the mediated settlement conference.
AO 20 (2011) Mediator’s Notarization of Settlement Agreement, Standard 7
The North Carolina Secretary of State’s Office has advised the Dispute Resolution Commission there is nothing that prohibits the attorney mediator or non-attorney mediator, both of whom are notaries, from notarizing a settlement agreement.
AO 19 (2011) Compensation of the Mediator, Rule 7
A mediator may charge an advanced deposit for services but is prohibited from delaying the mediation if the advanced deposit has not been made. The mediation shall be conducted by the mediator regardless of a party’s ability to pay the mediator’s fee.
AO 18 (2011) Filing Report of Mediator, Rule 6
The mediator is required to file a report of mediator timely and completely at the conclusion of the mediated settlement conference.
AO 17 (2010) Mediator Later Serving as Arbitrator, Standard 7
A mediator may serve as a mediator and later serve as an arbitrator for the same parties in the same dispute.
AO 16 (2010) Mediator’s Duty Concerning Intentional and Unlawful Non-Disclosure by Participant, Standard 8
Standard 8 of the Standards of Professional Conduct for Mediators requires mediators to protect the integrity of the mediation process. When a party in an equitable distribution action intentionally refuses to disclose information in mediation when such disclosure is required by statute, a mediator must terminate the mediated settlement conference.
AO 15 (2008) Mediator Accepting Role as Administrator of Estate, Standard 7
A mediator should remain focused exclusively on their role as mediator and may not solicit or accept an appointment as a fiduciary that flows from the mediation process.
AO 14 (2008) A mediator may provide work at no cost, or reduced fees under the conditions listed within this Advisory Opinion.
AO 13 (2007) Neutrality of the Mediator, Standard 2
The best practice for a mediator dealing with contradictory information without accusing a party of lying.
AO 12 (2007) A mediator may not modify the Rules for Settlement Procedures in District Court Family Financial Cases or the Standards of Professional Conduct for Mediators in their Agreement to Mediate service contract.
AO 11 (2007) Agreement Must Be Reduced to Writing and Signed at the End of the Mediation N.C.G.S. § 7A-38.1(l)
If an agreement is reached, the mediator must assure that it is reduced to writing and signed.
AO 10 (2006) Attendance, Rule 4(a)(1)
Over the objection of attorney A, the mediator has the discretion to allow attorney B’s paralegal to attend the mediated settlement conference.
AO 09 (2006) Mediator’s Duty in Response to Risk of Confidentiality Breach, Standard 3
Standard 3 of the Standards of Professional Conduct for Mediators places a duty of confidentiality on a mediator as to information communicated to the mediator during the mediation process. Implicit in this duty is an obligation to notify mediation participants, who may be at risk because of a breach in confidentiality, so the participants will have an opportunity to protect their interests.
AO 08 (2005) Scheduling the Mediated Settlement Conference, Rule 6(b)(5)
The mediator is responsible for scheduling the mediated settlement conference even when local practice dictates otherwise.
AO 07 (2004) After a mediator learns that a bankruptcy petition has been filed, the mediator shall notify the parties that the mediation cannot proceed until the stay has been lifted or the mediator is informed that an exception applies, and the parties have been given permission to proceed from the bankruptcy court.
AO 06 (2004) Mediator’s Future Representation of a Party, Standard 7
After conducting a mediation, the mediator/attorney shall not represent any party in future matters that arise from the same cause of action.
AO 05 (2003) Discussions after Impasse has been Declared, Rule 6 and Standard 3
Under certain circumstances after impasse has been declared, a mediator may have a discussion with an attorney for a party about what was said at the mediated settlement conference.
AO 04 (2003) A mediator is not required to retain their mediation files.
AO 03 (2001) Confidentiality of Statements Made in Opening Session, Standard 3
A mediator may not agree to provide an affidavit or be deposed concerning statements made during the opening session of a mediated settlement conference, even if the parties and their attorneys agree. Absent a statutory duty, a mediator is bound by the confidentiality provisions of the Standard.
AO 02 (2000) AO 02 has been archived September 20, 2024; Substantive content included in AO 24.
AO 01 (1999) Conference, Rule 6
A mediator cannot declare an impasse prior to conducting a mediated settlement conference.

 

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