Contested Guardianship Proceedings Mediation
June 2, 2022

5 Key Considerations for Mediation in Contested Guardianship Proceedings

Imagine this … 



Scenario 1: Estranged siblings are fighting over who should make health and financial decisions for their cognitively declining parent.



Scenario 2: Children of dad do not trust dad’s second wife to make decisions for dad, especially when they believe she is just out to secure his money. 



Scenario 3: Divorced parents of adult special needs child disagree about the adult child’s treatment plan and the best way to financially support the adult child.


Each of these scenarios, or a derivation thereof, find their way into lawyers’ offices and before the Clerk of Superior Court in the form of a special proceeding. Contested guardianship proceedings can be intense and fast paced. They are rife with family conflict and there is usually a time-sensitive need for a legal determination, whether that need is driven by financial or medical reasons.  


North Carolina has a long history of encouraging and supporting lawyers to find judicially efficient and economical means of solving their clients’ legal problems. An underutilized but effective avenue to consider in contested guardianship proceedings is mediation.


1. Why Mediate a Guardianship Dispute?


Mediation is quick, private, and allows for more creative resolutions.  


A. Quick.


When a guardianship matter will actually proceed to a hearing depends on several factors, including the size of the jurisdiction, the existing case load and schedule of both the hearing officers and the Guardian ad Litem, and the number of continuances granted. Depending on the circumstances, the parties and their counsel may be able to get to the mediation table months before a hearing. The expediency of mediation benefits clients who have little understanding of or patience for how slowly the wheels of the halls of justice actually turn. Additionally, a swift resolution minimizes the emotional toll of a contested proceeding on all interested parties, particularly the alleged incompetent, who is often particularly fragile.


B. Private.


Mediation is private and confidential, which is appealing to many clients, whether they are high net worth clients, there are sensitive issues involved, or they simply value their privacy. Unlike a hearing, there is no transcript of a mediation. On the contrary, any stenographic, audio, or video recording of the mediation process by any participant, either surreptitiously or with consent, is strictly prohibited under Rule 4(f) of the Rules for Mediated Settlement Conferences and Other Settlement Procedures in Superior Court Civil Actions. In addition to Rule 408 of the North Carolina Rules of Evidence, NCGS § 7A-38.3B(g) expressly provides, “[e]vidence of statements made or conduct occurring during a mediation conducted pursuant to this section, whether attributable to any participant, mediator, expert, or neutral observer, shall not be subject to discovery and shall be inadmissible in any proceeding in the matter or other civil actions on the same claim …” The statute does provide limited exceptions, including an exception that allows for a mediated settlement agreement to be presented to the clerk for approval, as discussed in section 3 below.


C. Creative.


Crafting a resolution through mediation allows the parties and their counsel an opportunity to better understand each other’s interests, and to find more creative and outside the box resolutions than a Clerk may consider. For example, the parties may agree to parameters regarding visitation with the alleged incompetent, which some clerks shy away from altogether but especially at the initial hearing. This could prevent future discord as well as limit the time and expense of future motions practice.  


2. Who Can Request Mediation in a Guardianship Proceeding?


The Clerk, on his/her own motion, or any party, interested person, or fiduciary in the matter pending before the Clerk of Superior Court, may move for an order to mediate. See NCGS § 7A-38.3B; Rule 1(c)(3) of the Rules of Mediation for Matters Before the Clerk of Superior Court; AOC-G-300; and AOC-G-301. To facilitate a more economical, efficient, and satisfactory resolution of the matters within the clerk’s jurisdiction, the clerk has the discretion and authority to order that mediation be conducted in any matter in which the clerk has exclusive or original jurisdiction, except for matters under Chapters 45 and 48 of the General Statutes and except in matters in which the jurisdiction of the clerk is ancillary. See NCGS § 7A-38.3B(a) & (b).


As in Superior Court cases, once a guardianship is ordered into mediation, the parties may designate a preferred mediator, using AOC-G-302, or ask the clerk to appoint a mediator. Party designated mediators are selected by the parties and set their own rate of compensation. Court-appointed mediators serve at the court-appointed rate, which is currently $150.00 per hour, plus a one-time administrative fee of $175.00.


3. Who Can Approve a Settlement?


Although it may seem obvious, do not forget that the interested parties can never stipulate to incompetence. Even when the only thing quarreling siblings can agree upon is the fact that elderly mom or dad is incompetent, they cannot stipulate to incompetence. They may, however, privately agree not to object to any finding of incompetence by the Clerk, who still must make findings of fact, based upon the evidence presented—even if that is derived solely from the Verified Petition and the Report of the Guardian ad Litem—that support an adjudication of incompetence.


Any agreement reached in a guardianship proceeding requires written approval by the Clerk of Superior Court. NCGS § 7A-38.3B(i)(2) provides, “[i]n matters before the clerk in which agreements are reached in a mediation conducted pursuant to this section, or during one of its recesses, those agreements shall be treated as follows … In all other matters before the clerk, including guardianship and estate matters, all agreements shall be delivered to the clerk for consideration in deciding the matter.” In fact, Rule 4(b)(2) of the Rules of Mediation for Matters Before the Clerk of Superior Court requires all written agreements reached in guardianship matters to include the following language in a prominent location in the document: “This agreement is not binding on the clerk but will be presented to the clerk as an aid to reaching a just resolution of the matter.” 


4. Who Pays the Mediator’s Fees?


NCGC § 35A-1116(c1) provides that mediator fees and other costs associated with mediation shall be assessed in accordance with NCGS § 7A-38.3B. Pursuant to NCGS § 7A-38.3B(f), costs of mediation shall be borne by the named parties, interested persons, and fiduciaries ordered to attend the mediation. Absent agreement to the contrary, costs are apportioned pro rata among those ordered to attend mediation. If everyone agrees that the mediator’s fees should be paid from the respondent’s estate, then a written order from the Clerk making specific findings of fact justifying the taxing of the mediator fees and costs to the alleged or adjudicated incompetent’s estate is required. Such a provision can be found in AOC-G-304 – Order for Apportionment of Mediator Fee in Matters Before the Clerk of Superior Court.


5. How to Find a Clerk of Court Certified Mediator for Your Guardianship Matter.


The North Carolina Dispute Resolution Commission is responsible for numerous different mediation programs. One of the most well-known programs is the Superior Court Mediation Program, but there is a separate program, requiring additional training and certification, to mediate matters pending before the Clerk of Superior Court, including guardianship and estate proceedings. Through its website, the North Carolina Dispute Resolution Commission maintains a searchable list of mediators who are certified in the Clerk Mediation Program.


Mediation of contested guardianship matters is an opportunity for each party and interested person to tell their side of the story to a neutral facilitator who will listen intently and empathize with their respective struggles and frustrations. Mediation offers a chance for information to be exchanged and new insights gleaned that just might be the crack in the door needed to find a resolution everyone can make peace with.

How to Get the Most Out of Any Negotiation

By Colleen Byers • September 18, 2026
A negotiation has two stages, and lawyers routinely underinvest in the first one. That was the through-line of a presentation I recently delivered with Frank C. Laney for the Expert Continuing Legal Education (CLE) Series sponsored by the North Carolina Bar Association. Frank is an attorney and mediator with the North Carolina Center for Mediation and, like me, a Dispute Resolution Commission certified Superior Court, Family Financial, and Clerk of Court mediator. Spending an hour trading war stories and hard-won lessons with him was the best kind of professional education — the kind where the presenters learn as much as the audience. Here is the short version of what we covered. What a Negotiation Actually Is We started by defining our terms. Negotiation is the interaction between two or more people with the intent of modifying the behavior of the other. Simply put, it is persuading someone to do something they would not ordinarily have done.  That framing matters because it puts the other person at the center of the negotiation. You are not just solving an equation. You are trying to move a human being. Stage One: Before the Negotiation Advance preparation is critical. We identified five important things to consider before ever taking a seat at the negotiation table. Analyze your key facts and legal arguments. What do you need to prove to win, and how will you prove it? What are the best facts and arguments for your client, and how do you maximize them? Just as important — what are the worst facts, and how do you plan to minimize them? One counterintuitive strategy: pre-emptively acknowledge the bad fact. It costs you less than you think and it buys you credibility, particularly when you follow it quickly with a strength. You should also decide, before you walk in, what information you want to share and what you want to learn from the other side. Holding your cards close to the vest or laying your cards on the table is a strategic choice, and different cases call for different strategies. Identify goals and interests. What are your client's actual motivations, needs, and core concerns? If they have several goals, how do they rank them? Also look for differences in preference you can trade on — i.e.: terms that cost one side very little but are worth a great deal to the other. That is where value gets created rather than merely divided. If your client tells you the goal is to win, they have not yet thought hard enough about the question. Winning is not a goal. It is a means. Ask them what they get when they win. Consider the other side's perspective. It takes two to reach an agreement. If you do not consider the other’s perspective, then you are missing half of the equation. What are their best facts and legal arguments? What might their motivation and core concerns be? How might you be able to address them in a way that could also be acceptable for your side? Have a plan, but stay flexible. Value the case. Know your optimistic goal, your target, and your tentative walk-away number, and know how you intend to move between them. Begin framing an opening proposal that lands inside a realistic Zone of Possible Agreement — opening somewhere the other side could never plausibly go is, at best, a waste of everyone’s afternoon. Your plan should never be, "I’ll respond to whatever they do." That hands them control of the entire process. Calibrate your attitude and approach. It takes two people to agree. Consider the best approach for this case, this client, and this opposing counsel. Then stay flexible enough to adjust as you learn new information during the negotiation. Four Questions to Help Value Your Case Frank Laney then walked the group through a four-question framework for calculating what your case is worth. What do you get when you win? Work through every category and element of damages, on your good day and on your bad day. How often will you win? There are no guaranteed outcomes in court. There is always some amount of risk by going to trial. What you may get at trial should be reduced to account for this risk and uncertainty. What will it cost you to win? Direct trial and appeal costs, attorneys’ fees, and the economic and non-economic costs people routinely leave out of this analysis. Can you collect the judgment? Solvency, the cost of collecting, the relationship cost of collecting, and your own time and effort. Run those numbers and you have your BATNA — your Best Alternative To a Negotiated Agreement. It is the realistic baseline against which every offer should be measured. For example, if you believe you will realistically win $100,000 at trial and there is a 50% chance of this trial outcome, then you should multiply $100,000 by .5, which gives you $50,000. You should then reduce $50,000 by the amount it will cost you to win at trial. For our example, let’s assume it will cost you $20,000 in attorneys’ fees. $50,000 minus $20,000 is $30,000. If you also have concerns about the collectability of this amount, then it should be further reduced so you can determine your realistic BATNA. Stage Two: During the Negotiation You are negotiating with a human being, so it helps to understand how human beings operate under pressure. We discussed several different strategies to employ during the negotiation. Summarize and clarify. A short restatement of what has just been discussed sorts out misunderstanding before it hardens into misconception. Avoid irritators. These are words that carry no persuasive power but reliably annoy the other side. Most negotiators know better than to insult anyone. Far fewer resist the urge to say gratuitously favorable things about their own position — describing their own proposal as "generous," "fair," or "reasonable." Self-praise does not persuade. It implies the other side is being unfair and unreasonable, and they hear exactly that. Ask questions. Questions gather information, steer the discussion, and convey disagreement more gracefully than contradiction does. They also keep the other party engaged and buy you a moment to organize your own thinking. Be sure to only ask one question at a time, allow time for the answer, and get comfortable with silence. If you are ever unsure what question to ask, a good fallback is: "Could you tell me more about that?" Avoid quick counterproposals. When you answer a proposal instantly with a counterproposal of your own, you introduce new issues at the exact moment the other side is least able to absorb them. Additionally, they will likely conclude that you were not really listening to or considering their proposal. Share inner thoughts commentary. This one feels risky and is often the most useful tool in the room. Say out loud what is going on in your mind — your read on the situation, how you are feeling about a subject, what is motivating you. For example, "I am worried we are very far apart on the price we can pay" cloaks disagreement in a frame that is more likely to lead to productive conversation than shut down the conversation entirely. Naming your motives makes them appear transparent, which builds trust, holds attention, and encourages reciprocity. Stay focused on your goal. Stick to your plan instead of reacting to theirs, and do not take the bait when it is offered. Conflict makes negotiators emotionally heated; heat produces value-loaded language; attack invites defense, which is read as counterattack, and the spiral tightens. Bullying and bluffing waste time. Credibility, built by being reasonable and realistic, is what produces agreements. Be patient. Remain unflappable and resist the illusion of urgency. The Part Worth Remembering The keys to getting the most out of any negotiation are preparation and discipline. In other words, do the analytical work before the negotiation starts, and then resist the knee jerk reactions that surface once it does.

Amendments to the North Carolina Mediation Rules Effective January 6, 2025

By Colleen Byers • January 8, 2025
What Attorneys and Mediators Need to Know On December 11, 2024, the North Carolina Supreme Court approved a series of important amendments to the Mediation Rules and Standards of Professional Conduct for Mediators. Effective on January 6, 2025, these changes impact key aspects of mediation practice in North Carolina.  Below is a summary of some (although not all) of the recent amendments to the Standards of Professional Conduct for Mediators, and the Mediation Rules governing settlement procedures in Superior Court, Family Financial, and Clerk of Court matters. For comprehensive redlines to each rule set, visit https://www.nccourts.gov/news/tag/general-news/supreme-court-amends-mediation-rule-sets Superior Court Mediation Amendments New Mediator Designation Forms See Rule 2(a) & (b) There are now two separate forms for mediator assignment, depending on whether the mediator is party selected or court appointed. One form entitled Designation of Mediator By Agreement of Parties in Superior Court Action and Order of Appointment (AOC-CV-812) is for parties to designate a mediator of their choice, while the other form entitled Appointment of Mediator by Court Order in Superior Court Civil Action (AOC-CV-840) is for requesting a court-appointed mediator or for court staff to file a mediator appointment where the parties have been unable to agree on the selection of a particular mediator. It is important to note that in order for any of the parties to designate a mediator of their choice, all parties, including but not limited to unrepresented parties, must agree to designate said mediator. If all parties have not expressed agreement to designate a particular mediator, then the parties and/or their counsel must use AOC-CV-840 to ask the court to select a mediator. Attorney Signatures Removed from Mediated Settlement Agreement See Rule 4(c) & Rule 10(c)(9)(b) The requirement for attorneys to sign the final settlement agreement, alongside their clients, has been removed. Updates to the form Mediated Settlement Agreement (AOC-DRC-15 and AOC-DRC-16) are anticipated so be sure to use the most up to date forms in your mediations. Party Designee Signature See Rule 4(c)(4) A clarification was made regarding the ability of a designee to sign on a party's behalf if the party does not attend the conference in person . A designee may sign the agreement on behalf of a party only if the party does not attend the mediated settlement conference in person and the party provides the mediator with a written verification that the designee is authorized to sign the agreement on the party’s behalf. The Dispute Resolution Commission’s Advisory Opinion AO 42 provides mediators with further guidance when a designee wishes to sign for a party who does not attend the mediation in person. Substitution of Mediator See Rule 7(c) The form used to request mediator substitution by mutual consent of all parties has now been linked directly to Rule 7(c) (AOC-CV-836). This makes the substitution process more efficient and standardized. Family Financial Mediation Amendments New Mediator Designation Forms See Rule 2(a) & (b) Just like the Superior Court Civil Actions, the process for assigning mediators in family financial cases has been updated with two new forms. One form (AOC-CV-825) allows for party-selected mediators, and the other (AOC-CV-841) is used to request a court-appointed mediator. Substitution of Mediator See Rule 7(c) The same update regarding mediator substitution applies here as in the other rules, with the relevant form (AOC-CV-836) linked directly to this rule. Clerk of Court Mediation Amendments New Mediator Designation Forms See Rule 2(a) & (b) Similarly to the other updates, the process for assigning mediators in matters before the Clerk of Superior Court has been divided into two forms. One form (AOC-G-302) is used for party-selected mediators, while the other (AOC-G-314) is used to request court-appointed mediators. Attorney Signature Removal See Rule 4(b) As in the other rules, the requirement for attorneys to sign the final agreement with their client has been removed from Rule 4(b). Mediator Confidentiality Amendment Exception to Confidentiality See Standard 3(d)(2) This amendment creates an important exception to the general rule of confidentiality in mediation. Specifically, it allows a mediator to testify, give an affidavit, or tender an agreement if required not only by a statute (as previously excepted) but now also by a mediation rule promulgated by a state or federal agency. The change clarifies that a mediation rule also serves as the basis under which a mediator may be compelled to breach confidentiality. Summary: What You Need to Do As of January 6, 2025, the new and updated forms should be available for use at www.nccourts.gov, and it is important to ensure your practice aligns with these amendments. The most notable changes include the following: Two different mediator designation forms, Attorneys do not need to sign the settlement agreement, and Revised mediator substitution form.