Mediator Files Report in Belmont Records Suit; Parties Prepare to Argue

Last year, the Civitas Institute Center for Law and Freedom (CLF) filed suit against the city of Belmont, North Carolina on behalf of two plaintiffs. The suit alleges that an investigative report into the Belmont Police Department is a public record, and as such they may receive a copy pursuant to N.C.G.S. § 132-6. The city maintains that the report is a confidential personnel file under N.C.G.S. § 160A-168.

North Carolina law currently mandates that parties to public records lawsuits file for mediation within 30 days of the defendant filing its answer. The statute on point, N.C.G.S. § 7A-38.3E, provides:

§ 7A-38.3E. Mediation of public records disputes.

(a) Voluntary Mediation. – The parties to a public records dispute under Chapter 132 of the General Statutes may agree at any time prior to filing a civil action under Chapter 132 of the General Statutes to mediation of the dispute under the provisions of this section. Mediation of a public records dispute shall be initiated by filing a request for mediation with the clerk of superior court in a county in which the action may be brought.

(b) Mandatory Mediation. – Subsequent to filing a civil action under Chapter 132 of the General Statutes, a person shall initiate mediation pursuant to this section. Such mediation shall be initiated no later than 30 days from the filing of responsive pleadings with the clerk in the county where the action is filed.

The statute makes no exception for cases where the parties’ dispute is purely over a question of law. No matter what, the parties have to file for mediation — even if they intend to waive pursuant to N.C.G.S. § 7A-38.3E(e):

(e) Waiver of Mediation. – The parties to the dispute may waive the mediation required by this section by informing the mediator of the parties’ waiver in writing. No costs shall be assessed to any party if all parties waive mediation prior to the occurrence of an initial mediation meeting.

Note that the waiver requires the parties to inform the mediator of their waiver. This means that the parties have to designate and pay a mediator before moving past the mediation statutes.

Last week, the mediator in our dispute with Belmont, filed his report certifying that the parties have waived mediation. This comes over three months after we filed our request for mediation. Thus, the mediation statutes essentially put a hold on our case for three months.

To be clear, my problem is not with the mediator. He was doing his job, and he did not enact the mediation statutes. But the mediation requirement is extremely frustrating, particularly in cases such as ours where the core issues are questions of law that can only be properly answered by a court.

With the mediation concluded, the parties now prepare to argue on summary judgment. Stay tuned for updates on his this and other CLF cases.

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