Short Answer

In North Carolina partition cases, you cannot unilaterally force a co-owner to pay mediation fees upfront. However, the Clerk of Superior Court can order how mediation fees are split and may shift more of the cost to one side for good cause. If the property is sold, the clerk can tax mediation fees as case costs and direct that they be paid from the sale proceeds before anyone receives their share.

Understanding the Problem

You are a North Carolina co-owner in a court-ordered mediation for a partition case and want to know if you can make the other co-owner pay the mediator now or ensure recovery from sale proceeds later. One co-owner has not provided payoff figures, which is delaying negotiations.

Apply the Law

In North Carolina, partition cases are special proceedings filed with the Clerk of Superior Court in the county where the land lies. The clerk may order mediation in matters within the clerk’s jurisdiction. Parties must attend and pay mediation fees as directed in the mediation order or rules. The clerk may apportion mediator fees unequally for good cause (including ability to pay or conduct in the case) and can enforce payment through contempt. When a partition by sale occurs, the clerk can tax reasonable case costs and direct that they be paid from sale proceeds before the net shares are distributed. Timing and exact apportionment are within the clerk’s discretion and may vary by county.

Key Requirements

• Court authority to order mediation: The clerk can require mediation in partition proceedings and set payment terms.
• Unequal apportionment for good cause: The clerk may shift more of the mediator’s fee to one party (or relieve a party) based on circumstances such as indigence or case-specific fairness.
• Enforcement of payment: Failure to pay a court‑ordered mediator fee can lead to show‑cause and contempt proceedings.
• Recovery from proceeds: If the property is sold, the clerk can tax mediation fees as costs of the proceeding and order payment from the first dollars of sale proceeds.
• Forum and timing: All requests are made in the partition special proceeding before the Clerk of Superior Court in the county where the property is located, typically before or during mediation and before entry of sale/disbursement orders.

What the Statutes Say

• N.C. Gen. Stat. § 7A-38.3B (Mediation before the Clerk) – Authorizes the clerk to order mediation, set rules, and enforce attendance and fee payment.
• N.C. Gen. Stat. Ch. 46A (Partition) – Governs partition procedure, including sales and allocation of proceeding costs.
• N.C. Gen. Stat. Ch. 1, Art. 29A (Judicial Sales) – Sets procedures for judicial sales and payment of sale expenses from proceeds.

Analysis

Apply the Rule to the Facts: Because mediation is court‑ordered, you must follow the clerk’s payment terms. You cannot require your co-owner to pay upfront unless the clerk orders an unequal split. Given the missing payoff figures, you can ask the clerk to allocate more of the mediator’s fee to the co-owner whose nonproduction is causing delay. If the case ends in a sale, you can also ask the clerk to tax the mediator’s fee as a case cost to be paid from sale proceeds before distributions.

Process & Timing

1. Who files: You (or your attorney). Where: Clerk of Superior Court, Special Proceedings file in the North Carolina county where the property is located. What: A motion asking the clerk to (a) apportion mediator fees (unequally if warranted) and/or (b) tax mediator fees as costs payable from sale proceeds; reference or request use of AOC-G-301 (Order Regarding Mediation) and AOC-G-304 (Order for Apportionment of Mediator Fee). When: Ideally before or during mediation and before the clerk enters orders of sale or disbursement.
2. If a party does not pay, the mediator may file AOC-G-305 (Motion and Order for Show Cause Hearing). The clerk can set a prompt hearing and may use contempt powers to enforce payment. An indigent party may seek relief using AOC-G-306T.
3. If a sale is ordered, ask the clerk to include mediator fees in the taxed costs so they are paid first from sale proceeds in the order confirming sale/distribution.

Exceptions & Pitfalls

• Indigence: A party may be relieved of part or all of the mediator’s fee; if so, the clerk may allocate more to others or to the proceeding.
• No unilateral demands: Without a court order, you cannot force the other co-owner to pay upfront or from proceeds.
• Buyout instead of sale: If no sale occurs, there are no proceeds to draw from—ensure any settlement requires fee reimbursement.
• Get it in the order: Ask the clerk to expressly tax mediation fees as costs and include them in the sale/disbursement order; omission can delay recovery.
• Enforcement risk: Ignoring payment deadlines can trigger a show‑cause hearing and possible contempt.

Talk to a Partition Action Attorney

If you’re dealing with mediation cost allocation or recovery in a North Carolina partition case, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at [919-341-7055].

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.