§ 7A-38.3. Prelitigation mediation of farm nuisance disputes.
§ 7A‑38.3. Prelitigation mediation of farm nuisance disputes.
(a) Definitions. As used in this section:
(1) "Farm nuisance dispute" means a claim that thefarming activity of a farm resident constitutes a nuisance.
(2) "Farm resident" means a person holding an interestin fee, under a real estate contract, or under a lease, in land used forfarming activity when that person manages the operations on the land.
(3) "Farming activity" means the cultivation offarmland for the production of crops, fruits, vegetables, ornamental andflowering plants, and the utilization of farmland for the production of dairy,livestock, poultry, and all other forms of agricultural products having adomestic or foreign market.
(4) "Mediator" means a neutral person who acts to encourageand facilitate a resolution of a farm nuisance dispute.
(5) "Nuisance" means an action that is injurious tohealth, indecent, offensive to the senses, or an obstruction to the free use ofproperty.
(6) "Party" means any person having a dispute with afarm resident.
(7) "Person" means a natural person, or anycorporation, trust, or limited partnership as defined in G.S. 59‑102.
(b) Voluntary Mediation. The parties to a farm nuisancedispute may agree at any time to mediation of the dispute under the provisionsof this section.
(c) Mandatory Mediation. Prior to bringing a civil actioninvolving a farm nuisance dispute, a farm resident or any other party shallinitiate mediation pursuant to this section. If a farm resident or any otherparty brings an action involving a farm nuisance dispute, this action shall,upon the motion of any party prior to trial, be dismissed without prejudice bythe court unless any one or more of the following apply:
(1) The dispute involves a claim that has been brought as aclass action.
(2) The nonmoving party has satisfied the requirements of thissection and such is indicated in a mediator's certification issued undersubsection (g) of this section.
(3) The court finds that a mediator improperly failed to issue acertification indicating that the nonmoving party satisfied the requirements ofthis section.
(4) The court finds good cause for a failure to attemptmediation. Good cause includes, but is not limited to, a determination that thetime delay required for mediation would likely result in irreparable harm orthat injunctive relief is otherwise warranted.
(d) Initiation of Mediation. Prelitigation mediation of a farmnuisance dispute shall be initiated by filing a request for mediation with theclerk of superior court in a county in which the action may be brought. TheAdministrative Office of the Courts shall prescribe a request for mediationform. The party filing the request for mediation also shall mail a copy of therequest by certified mail, return receipt requested, to each party to thedispute. The clerk shall provide each party with a list of mediators certifiedby the Dispute Resolution Commission. If the parties agree in writing to theselection of a mediator from that list, the clerk shall appoint that mediatorselected by the parties. If the parties do not agree on the selection of amediator, the party filing the request for mediation shall bring the matter tothe attention of the clerk, and a mediator shall be appointed by the seniorresident superior court judge. The clerk shall notify the mediator and theparties of the appointment of the mediator.
(e) Mediation Procedure. Except as otherwise expresslyprovided in this section, mediation under this section shall be conducted inaccordance with the provisions for mediated settlement of civil cases in G.S.7A‑38.1 and G.S. 7A‑38.2 and rules and standards adopted pursuantto those sections. The Supreme Court may adopt additional rules and standardsto implement this section, including an exemption from the provisions of G.S.7A‑38.1 for cases in which mediation was attempted under this section.
(f) Waiver of Mediation. The parties to the dispute may waivethe mediation required by this section by informing the mediator of theirwaiver in writing. No costs shall be assessed to any party if all parties waivemediation prior to the occurrence of an initial mediation meeting.
(g) Certification That Mediation Concluded. Immediately upon awaiver of mediation under subsection (f) of this section or upon the conclusionof mediation, the mediator shall prepare a certification stating the date onwhich the mediation was concluded and the general results of the mediation,including, as applicable, that the parties waived the mediation, that anagreement was reached, that mediation was attempted but an agreement was notreached, or that one or more parties, to be specified in the certification,failed or refused without good cause to attend one or more mediation meetingsor otherwise participate in the mediation. The mediator shall file the originalof the certification with the clerk and provide a copy to each party. Eachparty to the mediation has satisfied the requirements of this section upon thefiling of the certification, except any party specified in the certification ashaving failed or refused to attend one or more mediation meetings or otherwiseparticipate. The sanctions in G.S. 7A‑38.1(g) do not apply toprelitigation mediation conducted under this section.
(h) Time Periods Tolled. Time periods relating to the filingof a claim or the taking of other action with respect to a farm nuisancedispute, including any applicable statutes of limitations, shall be tolled uponthe filing of a request for mediation under this section, until 30 days afterthe date on which the mediation is concluded as set forth in the mediator'scertification, or if the mediator fails to set forth such date, until 30 daysafter the filing of the certification under subsection (g) of this section. (1995, c. 500, s. 1.)