Tuesday, October 17, 2006, 9:49 PM

COA: Failure To Notify Superior Court Of Failure To Agree On Mediator Isn't Grounds For Dismissal

In Gailey v. Triangle Billiards & Blues Club, Inc., decided today, the COA held that a plaintiff's failure to notify the trial court that the parties couldn't agree on a mediator is of no consequence. In Gailey the superior court's boilerplate mediation form requires a plaintiff to notify the court within 21 days if the parties can't agree on a mediator. Plaintiff failed to notify the court. So defendant moved (a week before trial) to dismiss the action with prejudice, and the superior court granted the motion. The COA reversed because the statute governing the selection of mediators (G.S. 7A-38.1(h)) and the N.C. Supreme Court rules provide that the senior resident superior court judge has a duty to appoint a mediator in the event the plaintiff has not filed a notice of selection of a mediator within 21 days.


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