ALTERNATIVE DISPUTE RESOLUTION IN NORTH CAROLINA ALTERNATIVE DISPUTE RESOLUTION IN NORTH CAROLINA A New Civil Procedure Second Edition Editor Elizabeth P. Manley Assistant Editors Frank C. Laney, Lynn P. Roundtree, and Catherine Brohaugh Revised from the First Edition, edited by Jacqueline R. Clare Review Group of the ADR Book Committee (Joint Committee of the North Carolina Bar Association Dispute Resolution Section and the North Carolina Dispute Resolution Commission) Copyright © 2012 by the North Carolina Bar Foundation and the North Carolina Dispute Resolution Commission. Design & production by BW&A Books, Inc. Manufactured in the United States of America. Library of Congress Control Number: 2012945497 ISBN: 978-0-9858889-09 The first edition was originally published in 2003, and reprinted in 2005. The second edition was published in 2012 in both print and e-book formats. This graphic of a multi-door courthouse, designed by Bobby Gill of the North Carolina Bar Association, first appeared in June 1985 on the cover of Dispute Resolution, A Task Force Report by the North Carolina Bar Foundation. The design represents the integration of alternative dispute resolution (ADR) procedures into the North Carolina justice system. Although the signs above each door depict litigation, arbitration, and mediation as the directions a dispute may take, the choices available to the parties have evolved since this graphic was introduced to provide for a wider array of alternatives for resolving disputes. This book is dedicated to former North Carolina Supreme Court CHIEF JUSTICE JamES G. EXUM, JR., without whose leadership many of the events herein would not have occurred, and CARMON J. STUART (1914–2004), without whose efforts this book would not have been written. CONTENTS ADR Book Committee Review Group and Editors xix Acknowledgments (Reprinted from the First Edition) xxiii Introduction to the Second Edition xxv Foreword xxvii Part I The DeveloPment of AlternatIve DIsPute ResolutIon (ADR) In North CarolIna The History of ADR in North Carolina 1. An Overview of Alternatives to Civil Litigation 3 Why ADR? Policy Reasons for the Use of Alternatives 3 A Survey of ADR Techniques 5 Specialized ADR Techniques: Building on the Basic Forms 8 Conclusion 11 2. Origins of the ADR Movement: The “Legal Explosion” and Calls for Change 12 The Impetus for Change 12 The “Pound Conference” of 1976 and the Expansion of the National ADR Movement 13 3. Community Mediation: Laying the Groundwork for ADR in North Carolina 16 The Orange County Dispute Settlement Center 16 Growth of Community Mediation in North Carolina 18 The Mediation Network of North Carolina 19 Support for Community Mediation from the North Carolina Bar Association and the Z. Smith Reynolds Foundation 20 ix x Contents 4. Early Steps in Court-Ordered Arbitration in North Carolina: The Federal Court Arbitration Program (1983–1987) 22 Court-Annexed Arbitration in the U.S. District Court for the Middle District of North Carolina 22 The Arbitration Panel 24 Local Rules Governing Arbitration 25 Role of the Private Adjudication Center 26 5. Dispute Resolution and the North Carolina Bar Association: Lawyers as Peacemakers and the Beginning of Court-Ordered Arbitration 28 The Dispute Resolution Task Force 29 The Push for State Court Arbitration 30 Other Work of the Dispute Resolution Committee 35 Conclusion 36 6. The Development of Mediated Settlement Conferences: From “Court-Ordered ADR” to “Settlement Procedures” 38 The Dispute Resolution Committee’s New Agenda 39 The Focus on Mediation 41 The Florida Model 42 Building Support for the Mediated Settlement Conference Pilot Program 44 Fine-Tuning the MSC Program 46 The 1995 Legislation 48 Emergence of the ADR “Menu” Approach 49 The Family Financial Settlement Program 51 Evaluation of the MSC Program 51 7. The Governance of North Carolina’s Court-Based ADR Programs 54 Early Guidance by the North Carolina Bar Association 54 The North Carolina Supreme Court Dispute Resolution Committee (1993–1995) 55 The North Carolina Dispute Resolution Commission 58 The Alternative Dispute Resolution Committee of the State Judicial Council 68 Current Governance Structure and Processes 81 Conclusion 83 Contents xi 8. The Continuing Role of the North Carolina Bar Association Dispute Resolution Section 85 The Section as Dispute Resolution Educator 86 The Section as Dispute Resolution Innovator 89 The Section as Dispute Resolution Advocate 92 The Section’s Role in Planning for the Future 94 9. Assessments of ADR Use and Acceptance in North Carolina 97 Summary of ADR Evaluations, Surveys, and Studies 97 Published Studies of ADR Techniques in North Carolina: A Select Bibliography 103 ADR Policies and Practice 10. Policy Issues in the Use of ADR in the Courts 105 Mandatory Versus Voluntary 105 Binding Versus Non-Binding Arbitration 106 “Fitting the Forum to the Fuss” 107 Which ADR Process Should Be the Default Procedure? 109 Exclusion by Case Type 110 Who Should Administer ADR Programs? 112 Qualification and Selection of Neutrals 113 Financing ADR Programs 116 Attendance at ADR Processes 118 Style of Mediation 119 Impartiality and the Courts 120 Should ADR Be Required Before a Lawsuit May Be Filed? 120 Should an Attorney-Mediator Report Misconduct? 122 11. Professionalism and Ethical Considerations in Dispute Resolution 124 DefiningP rofessionalism 124 Professionalism in North Carolina’s Legal Community and the Development of Standards for ADR Practitioners 125 Standards of Professional Conduct for Mediators 126 Canons of Ethics for Arbitrators 145 Maintaining Professionalism 154 Summaries of the Dispute Resolution Commission’s Ethics Opinions 157 xii Contents Part II ADR PractIce: The Nuts & Bolts of ADR Procedures In Use In North CarolIna Mediation of Civil Claims 12. The Mediated Settlement Conference Program in North Carolina’s Superior Courts 165 Program Design 165 Program Operations 167 Oversight 176 The Role of the Attorney 178 Conclusion 193 13. The North Carolina Industrial Commission Mediation Program 195 Historical Development 195 Summary of ICMSC Rules and Procedures 201 14. ADR in the North Carolina Office of Administrative Hearings 216 Creation of the Mediation Program 216 Operation of the OAH Mediation Program 217 The Judicial Settlement Conference 218 Mediation in Contested Medicaid Cases 219 Conclusion 219 15. Court-Ordered Mediation for Cases within the Jurisdiction of the Clerk of Superior Court 221 The Clerk as an Adjudicator 221 Program Background and Development 222 The 2005 Enabling Legislation: North Carolina General Statutes Section 7A-38.3B 224 Program Rules 228 Use of the Clerk Mediation Program 231 Conclusion 231 16. ADR in the North Carolina Business Court 233 ADR Procedures 233 Why Mediation Is Successful in Business Court Cases 234 Increasing the Effectiveness of ADR in the Business Court 236 Conclusion 236 Contents xiii 17. The North Carolina Court of Appeals Settlement Conference Program 237 Early Program (1981–1993) 237 Current Mediation Program (2002–Present) 240 Conclusion 242 Resolution of Family Matters 18. The Family Financial Settlement Program in North Carolina’s Courts 243 Program Design 243 Program Background and Development 245 ADR Options in the FFS Program 245 Oversight 263 Conclusion 265 19. The Child Custody and Visitation Mediation Program in North Carolina’s Courts 267 Introduction 267 History of the North Carolina Child Custody and Visitation Mediation Program 268 Program Methods and Values 269 Program Procedures 270 Conclusion 271 20. Permanency Mediation in North Carolina: Resolving Issues of Child Placement in Cases Involving Abuse, Neglect, and Dependency 273 The Permanency Concept 273 Overview of Permanency Mediation 274 The Mecklenburg County Pilot Project 275 The Statewide Initiative 276 Program Procedures 277 Challenges for the Future of Permanency Mediation in North Carolina 278 Conclusion 280 21. Voluntary Alternative Dispute Resolution in Family Matters 282 Voluntary Mediation in the Process of Separation and Divorce 282 Collaborative Divorce Proceedings 283 The Use of ADR with Elder Issues 284 xiv Contents Mediation Centers 22. Community Dispute Settlement Centers in North Carolina 286 Overview of the Community Mediation Process in North Carolina 287 District Criminal Court Mediation 287 Civil Mediation 288 Truancy Mediation 289 Medicaid Appeals Mediation 290 Educational Efforts of Dispute Settlement Centers 290 Community-Based Public Disputes Resolution in North Carolina 291 Carolina Dispute Settlement Services 295 Conclusion 301 23. The District Criminal Court Mediation Program 302 Introduction 302 Program Procedures and Rules 303 Program Statistics 306 Program Fees and Funding 306 Conclusion 307 24. The North Carolina Medicaid Mediation Program 308 The Collaboration 308 Overview of the Appeal Process 309 How Mediation Is Conducted 310 Why Training and Education Are Crucial to the Program 311 The Results of the Mediation Program 312 25. The Prisoner Re-Entry Mediation Program 313 The Re-Entry Mediation Method 313 Offering the Program in Prisons 314 Contributors to the Program 315 Conclusion 315 ADR in Government Agencies 26. Governmental Dispute Resolution in North Carolina 316 Overview of Public Disputes Resolution 316 Mediation of Employment Disputes Involving Public Employees 325 The North Carolina Agricultural Mediation Program: A Federal ADR Model 334 The Mediation of Public Records Disputes 335 Conclusion 336 Contents xv 27. North Carolina Public School Systems and Alternative Dispute Resolution Programs