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Is North Carolina Going Back to In-Person Mediation?
May 02, 2023

As of May 1, 2023, mediation conducted by remote technology is no longer the default method in North Carolina. Instead, the method for mediation depends on the mediator and the parties in each case. The scope of this article is limited to the following programs administered by the North Carolina Dispute Resolution Commission:

  1. Mediated Settlement Conferences in Superior Court;
  2. Family Financial; and
  3. Clerk of Court.


A little historical context is important to understand the significance of these rule changes. Prior to the COVID-19 pandemic, the mediation rules in North Carolina heavily favored in-person mediations. In 2020, as a result of the COVID-19 pandemic, the North Carolina Supreme Court adopted amendments to the North Carolina mediation rules, which made mediation by remote methods the default rule, unless either: the parties and the mediator agreed otherwise; or the court ordered otherwise. Many lawyers and mediators alike feared that the rules would revert back to the pre-pandemic preference for in-person mediations. However, the current amendments allow for greater flexibility on a case-by-case basis while still providing definitive guidance in the event of disagreements about the method by which the mediation will be conducted.

Although other rules were also changed, the changes to Rule 4 of the North Carolina Mediation Rules (MSC, FFS, and Clerk), as of May 1, 2023, have been what many mediators and lawyers alike have been anxiously awaiting. As of May 1, 2023, mediation conducted by remote technology is no longer the default method. Instead, the method for mediation depends on the mediator and the parties in each case. Here is a step-by-step guide to the analysis:


Step 1 


Mediators may indicate on their North Carolina Dispute Resolution Commission (the “DRC”) mediator profile whether they will mediate in-person only, via remote technology only, or by any method.



Step 2 


The parties and the mediator in each case may determine the method of the mediation.



Step 3 


If the parties, the lawyers, and the mediator cannot agree in Step 2, then the method of mediation will default to the method indicated in the mediator’s profile with the DRC.



Step 4 


If the mediator did not make any designation in their DRC profile or if the mediator designated “any method,” then the mediation will default to in-person.



Step 5 


Any party, upon notice to all parties and the mediator, may file a motion with the Court to determine the method by which the mediation will be conducted.



These recent changes to the North Carolina Mediation Rules allow for flexibility to address the unique circumstances and preferences of each case. A full text of all the amendments to the North Carolina Mediation Standards of Professional Conduct and Rules can be found here.

Managing Emotional Clients

By Colleen Byers • 06 Feb, 2024
Managing Emotional Clients Colleen L. Byers collaborated with fellow neuroscience geek and mediator, Chris Osborn, to deliver this month’s Expert Continuing Legal Education (CLE) Series sponsored by the North Carolina Bar Association. Colleen co-presented about the impact of trauma on clients in the legal system and shared some practical tools for managing difficult emotions within ourselves (as lawyers or as mediators) as well as with our clients. View the CLE, which includes 1 hour of Mental Health/Substance Abuse credit in North Carolina here .

How to Negotiate Around Impasse Through Brainstorming Options

By Colleen Byers • 31 Jan, 2024
You have been mediating and negotiating all day long. You are fully invested and can sometimes glimpse the fragile light at the end of the tunnel. Suddenly, all the momentum that has been slowly building all day seems to come to a screeching halt. How do you avoid crashing into an unbreakable impasse? First things first. Pause and take a deep breath. Then take another deep breath for good measure. Then get a sheet of paper and a pen. Along the left side of the paper, write the numbers 1 through 5. Now, with pen in hand, ask yourself these questions and write the responses next to numbers 1 through 5. What is the craziest idea I can think of to solve this problem? What is the second craziest idea I can think of to solve this problem? What is a variation of the other side’s idea that would work for me with an adjustment? What is another idea? What else might work? You have now generated five new possible ways to solve this problem that you can share with the other side to keep the negotiation moving forward and avoid running straight into an impasse. Let me give you a real-life example. My daughters were fighting over the most coveted seat on the couch. The older child asserted, “This is my spot. I always sit here.” The younger child claimed, “But I was here first today!” Unsurprisingly, their attempts to persuade the other to acquiesce were unsuccessful. They are not old enough to engage lawyers to determine who had the stronger legal claim to the coveted seat on the couch but they both came running to me pleading their respective cases in hopes that I would serve as the arbitrator. I declined to serve as an arbitrator but did put my mediator hat on. We all sat at the kitchen table with paper and pen to brainstorm possible solutions that would work for both of them. You may be wondering how I got my young children to do this. I told them that they could not watch any television until they found a solution to which they could both say yes. So down they sat with pen in hand. Using questions 1 through 5 above, as prompts, they generated the following ideas: Take turns – alternate days; Take turns – set a timer and then switch; Sit on top of each other; Build a fort on the couch for both of us. Then we went back through the list one by one, and I asked each child if they were a “yes” or a “no” for that particular idea. Here is what that looked like:
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