Mandatory Mediation in North Carolina Superior Court Cases

April 17, 2012

The North Carolina trial courts are separated into two divisions, District Court and Superior Court. Before filing any civil lawsuit, Plaintiff’s counsel must decide the better division in which to litigate his or her client’s case. State statutes provide that District Court is the proper division for matters where the damages are less than $10,000, whereas Superior Court is the proper division for all larger cases. This statute does not, however, prevent a client from filing a larger lawsuit in District Court, it just means the Defendant may be able to have the matter transferred to Superior Court. In many cases the Defendant will fail to timely request such a transfer.

There is one primary advantage of filing in District Court – speed, and one primary advantage of filing in Superior Court – mandatory mediation. That is, mediation is not required in District Court, and usually does not occur, so if the litigant would like to take advantage of mediation, the matter should be filed in Superior Court. Mediation is important in larger cases because it is an excellent opportunity to get the parties in the same room to negotiate a settlement. This is especially true where there are several Defendants who are responsible. It may be the only opportunity a Plaintiff has to have all of the Defendants together to work out their respective portions of any settlement offer.

The first step in any mediation is designating a mediator, who is usually a non-affiliated, experienced trial attorney. If the parties cannot agree on a mediator, one will be appointed by the Superior Court. The parties will then schedule a “Mediated Settlement Conference” (i.e. mediation), where they will each begin the day by describing their view of the case to the other party and the mediator in a “joint session.” This usually means the Plaintiff will describe his or her damages and the Defendant’s liability, whereas the Defendant will describe any legal defenses to which it is entitled. After this joint session, the parties then “break out” into separate rooms.

Once the parties are in their respective break out rooms, the mediator will go from room to room exchanging settlement offers and providing his own neutral insight into the case. Because most mediators are experienced lawyers, they can provide a respected opinion of the value of the case. While the mediator’s opinion is non-binding, and he or she has no power to force settlement, it can be a good indication of what may happen at trial.

It is impossible to say what percentage of mediations end in settlements, but it is likely a very large number. That is why it is important for Plaintiffs to take the opportunity seriously and to come prepared to resolve their case. Many times, it will be the last real opportunity to discuss the case with the other party and settle before trial. The only negative of mediation is the cost. The parties typically have to split the mediator’s fee. For more in demand mediators, the cost is sometimes as high as $300/hour.

If you would like more information regarding Superior Court mediation, or representation for any Superior Court matter, contact the Raleigh civil litigation attorneys of Maginnis Law at 919.480.8526. Our attorneys regularly handle Superior Court matters in Wake, Durham, Alamance, and the surrounding counties, including cases from Raleigh, Durham, Cary, Apex, Chapel Hill, Burlington, Clayton, Wake Forest, and the remainder of the Triangle. These matters include contract disputes, construction law cases, and personally injury matters such as serious injury car accidents and wrongful death. You may send a confidential email regarding any potential civil litigation matter via our website’s contact page.

 

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