11 NCAC 23G .0107         COMPENSATION OF THE MEDIATOR

(a)  By Agreement. When the mediator is stipulated to by the parties, compensation shall be as agreed upon between the parties and the mediator.

(b)  By Commission Order. When the mediator is appointed by the Commission, the mediator's compensation shall be as follows:

(1)           Conference Fees. The mediator shall be paid by the parties at the rate of one hundred fifty dollars ($150.00) per hour for mediation services provided at the mediated settlement conference.

(2)           Administrative Fees. The parties shall pay to the mediator a one time, per case administrative fee of one hundred fifty dollars ($150.00). The mediator's administrative fee shall be paid in full unless, within 10 days after the mediator has been appointed, written notice is given to the mediator and to the Dispute Resolution Coordinator that the issues for which a request for hearing was filed have been fully resolved or that the hearing request has been withdrawn.

(3)           Postponement Fees. As used in this Subchapter, the term "postpone" means to reschedule or otherwise not proceed with a scheduled mediated settlement conference after the conference has been scheduled to convene on a specific date. After a conference is scheduled to convene on a specific date, the conference may not be postponed unless the requesting party notifies all other parties of the grounds for the requested postponement and obtains the consent and approval of the mediator or the Dispute Resolution Coordinator. If the conference is postponed without good cause, the mediator shall be paid a postponement fee. The postponement fee shall be three hundred dollars ($300.00) if the conference is postponed within seven calendar days of the scheduled date, and one hundred fifty dollars ($150.00) if the conference is postponed more than seven calendar days prior to the scheduled date. Unless otherwise ordered by the Commission in the interests of justice, postponement fees shall be allocated in equal shares to the party or parties requesting the postponement. As used in this Rule, "good cause" shall mean that the reason for the postponement involves a situation over which the party seeking the postponement has no control, including a party or attorney's illness, a death in a party or attorney's family, a demand by a judge that a party or attorney for a party appear in court, or inclement weather such that travel is prohibitive.

(4)           The settlement of a case prior to the scheduled date of the mediated settlement conference shall be good cause to cancel the mediation without the approval of the mediator or the Dispute Resolution Coordinator. The parties shall notify the mediator of any cancellation due to settlement. The mediator may charge a cancellation fee of one hundred fifty dollars ($150.00) if notified of the cancellation within 14 days of the scheduled date, or three hundred dollars ($300.00) if notified within seven days of the scheduled date.

(c)  Payment by Parties. Payment is due upon completion of the mediated settlement conference; provided, that the State shall be billed at the conference and shall pay within 30 days of receipt of the bill, and insurance companies or carriers whose written procedures do not provide for payment of the mediator at the conference shall pay within 15 days of the conference. Unless otherwise agreed to by the parties or ordered by the Dispute Resolution Coordinator due to a party or parties violating a rule in this Subchapter, the costs of the conference shall be allocated to the parties, as follows:

(1)           one share by plaintiff(s);

(2)           one share by the workers' compensation defendant-employer or its insurer, or if more than one employer or carrier is involved, or if there is a dispute between employer(s) or carrier(s), one share by each separately represented entity;

(3)           one share by participating third-party tort defendants or their carrier, or if there are conflicting interests among them, one share from each defendant or group of defendants having shared interests; and

(4)           if applicable, one share by the defendant State agency in a Tort Claims Act case.

Parties obligated to pay a share of the costs are responsible for equal shares; provided, however, that in workers' compensation claims the defendant shall pay the plaintiff's share of mediation, postponement, and substitution fees, as well as defendant's own share. If plaintiff requests postponement of the mediated settlement conference, defendants shall be entitled to a credit for the postponement fee.

(d)  Unless the Dispute Resolution Coordinator enters an order allocating such fees to a particular party due to the party violating a Rule in this Subchapter, the fees may be taxed as other costs by the Commission in an Order or Opinion and Award. After the case is concluded, the defendant shall be reimbursed for the plaintiff's share of such fees from any compensation determined to be due to the plaintiff, and the defendant may withhold funds from any award for this purpose.

History Note:        Authority G.S. 97-80(a); 97-80(c); 143-296; 143-300; Rule 7 of Rules for Mediated Settlement Conference and Other Settlement Procedures in Superior Court Civil Actions;

Eff. January 16, 1996;

Amended Eff. October 1, 1998;

Recodified from 04 NCAC 10A .0616;

Amended Eff. July 1, 2014; January 1, 2011; June 1, 2000;

Recodified from 04 NCAC 10G .0107 Eff. June 1, 2018.