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The North Carolina Court of Appeals held that the trial court abused its discretion in dismissing a case for failure to comply with a mediation order. Instead of dismissing the case, the court should have appointed a mediator.
In Gailey v. Triangle Billiards & Blues Club, Inc., No. COA06-327, 2006 WL 2946614 (N.C. Ct. App. Oct. 17, 2006), Gailey brought a personal injury lawsuit against Triangle Billiards. The trial court issued a mediation order. The order gave the parties 21 days to select a mediator or notify the court of their failure to agree on a mediator.
The parties could not agree on a mediator and never attended mediation. On the eve of trial, Triangle Billiards moved for dismissal on the ground that Gailey failed to comply with the mediation order. The trial court granted the motion and dismissed the case.
On appeal, the Court held that the trial court abused its discretion in dismissing the case. When the parties couldn’t agree on a mediator, the trial court should have appointed one pursuant to N.C. Gen. Stat. §7A-38.1(h), which provides: “Upon the failure of the parties to designate a mediator within the time established by the rules of the Supreme Court, a mediator shall be appointed by the senior resident superior court judge.”
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