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On January 23, 2023, The Supreme Court of North Carolina adopted the Rules for Mediated Settlement Conferences and Other Settlement Procedures in Superior Court Civil Actions, superseding the existing set of rules in its entirety, that went into effect on May 1, 2023. Rule 4, which governs attendance at Superior Court mediations, was amended.
Rule 4 was amended to state that if all parties and the mediator agree that the mediation will occur remotely, in-person, or a mixture of the two, then the mediation will be held using the agreed-upon attendance method. If the parties cannot reach an agreement regarding the attendance method of the mediation, the mediation will automatically occur in person. However, the mediation will not automatically occur in person if the mediator has stated in the Dispute Resolution Commission’s Mediator Information Directory that they will only conduct remote mediations.
If a party that is required to attend the mediation would like an attendance method that was not agreed upon by the parties and the mediator, then that party may file a motion with the Industrial Commission Dispute Resolution Coordinator asking that a different method of attendance be ordered.
Rule 104 of the Industrial Commission’s mediation rules (11 NCAC 23G .0104) concerns mediation attendance and paragraph (b) specifies that the attendance method for Industrial Commission mediations shall be the same as the attendance method set forth in Rule 4 of the Rules for Mediated Settlement Conferences and Other Settlement Procedures in Superior Court Civil Actions. Accordingly, the Rule 4 amendments directly affect the way the Industrial Commission determines mediation attendance methods. To help understand this concept, the Industrial Commission created a flowchart, which can be viewed on our website at: https://teaguecampbell.com/mediation-update-2024/.
Although some mediations are quite successful when held remotely, others seem to be more successful if the parties are physically present. Sometimes, when the mediation is held remotely, the participation of the parties can be less predictable. Further, in workers’ compensation cases, mediation is normally the only time defense counsel is able to see the injured worker, and it can be more difficult to judge credibility or to get an accurate impression of injury or level of disability if the parties are appearing remotely. This is especially true in denied cases where credibility and the extent of the injury may be in dispute. If you have any questions or would like to discuss the best method of attendance at your mediations, please reach out to a member of our Teague Campbell Workers’ Compensation team.