GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2007
SESSION LAW 2007-387
SENATE BILL 728
AN ACT to encourage mediation in district criminal courts and to establish a program within the dispute resolution commission for the certification of mediators working in the district criminal courts.
The General Assembly of North Carolina enacts:
SECTION 1. Article 5 of Chapter 7A of the General Statutes is amended by adding a new section to read:
"§ 7A-38.3D. Mediation in matters within the jurisdiction of the district criminal courts.
(a) Purpose. - The General Assembly finds that it is in the public interest to promote high standards for persons who mediate matters in district criminal court. To that end, a program of certification for these mediators shall be established in judicial districts designated by the Dispute Resolution Commission and the Director of the Administrative Office of the Courts and in which the chief district court judge, the district attorney, and the community mediation center agree to participate. This section does not supersede G.S. 7A-38.5.
(b) Enabling Authority. - In each district, the court may encourage mediation for any criminal district court action pending in the district, and the district attorney may delay prosecution of those actions so that the mediation may take place.
(c) Program Administration. - A community mediation center established under G.S. 7A-38.5 and located in a district designated under subsection (a) of this section shall assist the court in administering a program providing mediation services in district criminal court cases. A community mediation center may assist in the screening and scheduling of cases for mediation and provide certified volunteer or staff mediators to conduct district criminal court mediations.
(d) Rules of Procedure. - The Supreme Court shall adopt rules to implement this section. Each mediation shall be conducted pursuant to this section and the Supreme Court Rules as adopted.
(e) Mediator Authority. - In the mediator's discretion, any person whose presence and participation may assist in resolving the dispute or addressing any issues underlying the mediation may be permitted to attend and participate. The mediator shall have discretion to exclude any individual who seeks to attend the mediation but whose participation the mediator deems would be counterproductive. Lawyers for the participants may attend and participate in the mediation.
(f) Mediator Qualification. - The Supreme Court shall establish requirements for the certification or qualification of mediators serving under this section. The Court shall also establish requirements for the qualification of training programs and trainers, including community mediation center staff, that train these mediators. The Court shall also adopt rules regulating the conduct of these mediators and trainers.
(g) Oversight and Evaluation. - The Supreme Court may require community mediation centers and their volunteer or staff mediators to collect and report caseload statistics, referral sources, fees collected, and any other information deemed essential for program oversight and evaluation purposes.
(h) Immunity. - A mediator under this section has judicial immunity in the same manner and to the same extent as a judge of the General Court of Justice, except that a mediator may be disciplined in accordance with procedures adopted by the Supreme Court. A community mediation center and its staff involved in supplying volunteer or staff mediators or other personnel to schedule cases or perform other duties under this section are immune from suit in any civil action, except in any case of willful or wanton misconduct.
(i) Confidentiality. - Any memorandum, work note, or product of the mediator and any case file maintained by a community mediation center acting under this section and any mediator certification application are confidential.
(j) Inadmissibility of Negotiations. - Evidence of any statement made and conduct occurring during a mediation under this section shall not be subject to discovery and shall be inadmissible in any proceeding in the action from which the mediation arises. Any participant in a mediation conducted under this section, including the mediator, may report to law enforcement personnel any statement made or conduct occurring during the mediation process that threatens or threatened the safety of any person or property. A mediator has discretion to warn a person whose safety or property has been threatened. No evidence otherwise discoverable is inadmissible for the reason it is presented or discussed in a mediated settlement conference or other settlement proceeding under this section.
(k) Testimony. - No mediator or neutral observer present at the mediation shall be compelled to testify or produce evidence concerning statements made and conduct occurring in or related to a mediation conducted under this section in any proceeding in the same action for any purpose, except in:
(1) Proceedings for abuse, neglect, or dependency of a juvenile, or for abuse, neglect, or exploitation of an adult, for which there is a duty to report under G.S. 7B-301 and Article 6 of Chapter 108A of the General Statutes, respectively.
(2) Disciplinary proceedings before the North Carolina State Bar or any agency established to enforce standards of conduct for mediators.
(3) Proceedings in which the mediator acts as a witness pursuant to subsection (j) of this section.
(4) Trials of a felony, during which a presiding judge may compel the disclosure of any evidence arising out of the mediation, excluding a statement made by the defendant in the action under mediation, if it is to be introduced in the trial or disposition of the felony and the judge determines that the introduction of the evidence is necessary to the proper administration of justice and the evidence cannot be obtained from any other source.
(l) Written Agreements. - Any agreement reached in mediation shall be reduced to writing and signed by the parties. A non-attorney mediator may assist parties in reducing the agreement to writing.
(m) Dismissal Fee. - Where an agreement has been reached in mediation and the case will be dismissed, the defendant shall pay to the clerk the dismissal fee of court set forth in G.S. 7A-38.7. By agreement, all or any portion of the fee may be paid by a person other than the defendant. The judge may in the judge's discretion waive the fee for good cause shown.
(n) Definitions. - As used in this section, the following definitions apply:
(1) Court. - A district court judge, a district attorney, or the designee of a district court judge or district attorney.
(2) Neutral observer. - Includes any person seeking mediator certification, any person studying any dispute resolution process, and any person acting as an interpreter."
SECTION 2. G.S. 7A-38.2(a) reads as rewritten:
"(a) The Supreme Court is
authorized tomay adopt standards of conduct for mediators and other
neutrals who are certified or otherwise qualified pursuant to G.S. 7A-38.1,
7A-38.3, G.S. 7A-38.3B, 7A-38.3D, and 7A-38.4A, or who
participate in proceedings conducted pursuant to those sections. The standards
may also regulate mediator and other neutral training programs. The Supreme
Court may adopt procedures for the enforcement of those standards."
SECTION 3. G.S. 7A-38.2(c) reads as rewritten:
"(c) The Dispute
Resolution Commission shall consist of 15 16 members: five judges
appointed by the Chief Justice of the Supreme Court, at least two of whom shall
be superior court judges, and at least two of whom shall be district court
judges; one clerk of superior court appointed by the Chief Justice of the
Supreme Court; two mediators certified to conduct superior court mediated
settlement conferences and two mediators certified to conduct equitable
distribution mediated settlement conferences appointed by the Chief Justice of
the Supreme Court; one certified district criminal court mediator who is a
representative of a community mediation center appointed by the Chief Justice
of the Supreme Court; two practicing attorneys who are not certified as
mediators appointed by the President of the North Carolina State Bar, one of
whom shall be a family law specialist; and three citizens knowledgeable about
mediation, one of whom shall be appointed by the Governor, one by the General
Assembly upon the recommendation of the Speaker of the House of Representatives
in accordance with G.S. 120-121, and one by the General Assembly upon the
recommendation of the President Pro Tempore of the Senate in accordance with
G.S. 120-121. Members shall initially serve four-year terms, except that
one judge, one mediator, one attorney, and the citizen member appointed by the
Governor, shall be appointed for an initial term of two years. Incumbent
members as of September 30, 1998 shall serve the remainder of the terms to
which they were appointed. Members appointed to newly-created membership
positions effective October 1, 1998 shall serve initial terms of two years.
Thereafter, members shall serve three-year terms and shall be ineligible to
serve more than two consecutive terms. The Chief Justice shall designate one of
the members to serve as chair for a two-year term. Members of the Commission
shall be compensated pursuant to G.S. 138-5.
Vacancies shall be filled for unexpired terms and full terms
in the same manner as incumbents were appointed. Appointing authorities may
receive and consider suggestions and recommendations of persons for appointment
from the Dispute Resolution Commission, the Family Law, Litigation, and Dispute
Resolution Sections of the North Carolina Bar Association, the North Carolina
Association of Professional Family Mediators, the North Carolina Association
Conference of Clerks of Superior Court, the North Carolina
Conference of Court Administrators, the Mediation Network of North Carolina,
the Dispute Resolution Committee of the Supreme Court, the Conference of Chief
District Court Judges, the Conference of Superior Court Judges, the Director of
the Administrative Office of the Courts, and the Child Custody Mediation
Advisory Committee of the Administrative Office of the Courts."
SECTION 4. The Supreme Court shall adopt rules under G.S. 7A-38.3D(d), as enacted in Section 1 of this act, and shall establish requirements for the certification or qualification under G.S. 7A-38.3D(f), as enacted by Section 1 of this act, no later than January 1, 2008.
SECTION 5. This act is effective when it becomes law and applies to mediations conducted on and after the date the Supreme Court adopts rules and requirements for the certification or qualification under Section 4 of this act.
In the General Assembly read three times and ratified this the 31st day of July, 2007.
s/ Beverly E. Perdue
President of the Senate
s/ Joe Hackney
Speaker of the House of Representatives
s/ Michael F. Easley
Governor
Approved 7:09 p.m. this 19th day of August, 2007