Jan72026
Partition Action Q&A Series

If I refuse mediation and push for a hearing, can that hurt me later in court? – North Carolina

Short Answer

In North Carolina, declining to settle in mediation usually does not “hurt” a party later just because the party wanted a hearing. However, if the clerk or judge orders mediation and a required participant fails to attend (or does not pay required mediator fees) without good cause, the court can impose sanctions, including attorneys’ fees and other costs. Mediation communications are generally confidential and inadmissible, but they can be used in a sanctions proceeding.

Understanding the Problem

In a North Carolina partition action (a special proceeding about jointly owned real property), a co-owner may want to skip mediation and ask the Clerk of Superior Court (or a Superior Court judge if the matter is transferred) to set a hearing. The decision point is whether refusing mediation—or insisting on a hearing instead—can later be used against that party when the court decides issues like sale versus partition, credits for carrying costs, or how costs get allocated.

Apply the Law

Under North Carolina law, mediation is often encouraged and can be ordered in certain civil matters, including partition cases where a partition sale is requested. A party generally cannot be punished simply for refusing to make a settlement offer. The main legal risk comes from disobeying a mediation order (or failing to comply with mediation requirements) rather than from choosing to litigate the dispute.

Key Requirements

  • Was mediation ordered by the clerk or judge?: If mediation is ordered, required participants must attend unless excused.
  • Compliance with the order and fee rules: A required participant must show up and comply with mediator-fee requirements (or obtain a waiver/relief if unable to pay under the applicable rules).
  • Good cause for nonattendance (if any): If a required participant does not attend, the key question becomes whether there was “good cause” for the failure.

What the Statutes Say

Analysis

Apply the Rule to the Facts: In the stated partition dispute, the concern is whether choosing a hearing over mediation could later be used as a strike against a co-owner, especially where the other side claims credits for carrying costs and delays could increase fees. Under North Carolina’s mediation statutes, the court’s focus is typically not on whether a party wanted a hearing, but on whether the party complied with any mediation order (attendance and fee obligations) and acted with good cause if they did not. A party can attend mediation, decline to settle, and still preserve the ability to present the carrying-cost credit dispute at a hearing.

Process & Timing

  1. Who files: Typically, a party who wants mediation (or wants to enforce/avoid it) files a motion or responds to a motion/order. Where: In a partition special proceeding, filings are usually made with the Clerk of Superior Court in the county where the property is located; if the matter is transferred, filings go to Superior Court. What: Common filings include a motion to order mediation, a motion to be excused from attendance, or a motion for sanctions if a required participant fails to attend. When: Timing depends on the mediation order and local scheduling; if mediation is ordered, the order typically sets deadlines for selecting a mediator and completing the session.
  2. Attend the mediation if ordered: If the clerk or judge orders mediation, required participants should attend unless excused. North Carolina statutes also make clear that no participant is required to make an offer or demand that is against that participant’s best interests.
  3. If mediation does not resolve the case: The case returns to the clerk or judge for the next hearing step (for example, deciding sale versus partition, and later addressing accounting-type disputes such as claimed credits) under the normal partition procedure.

Exceptions & Pitfalls

  • Ignoring a mediation order (not just refusing to settle): The biggest risk is sanctions for failing to attend or failing to pay required mediator fees without good cause. Sanctions can include monetary penalties such as attorneys’ fees and other expenses tied to the missed session. See N.C. Gen. Stat. § 7A-38.1(g) and N.C. Gen. Stat. § 7A-38(j).
  • Assuming mediation communications can never come up: Mediation discussions are generally confidential and inadmissible, but the statutes allow limited exceptions, including proceedings for sanctions. See N.C. Gen. Stat. § 7A-38.1(l) and N.C. Gen. Stat. § 7A-38(g).
  • Confusing “refusing mediation” with “refusing to negotiate”: North Carolina’s mediation statutes expressly state that no one must make a settlement offer or demand against their interests. The safer approach, when mediation is ordered, is often to attend and simply not settle if the numbers or terms do not make sense.
  • Transfer concerns and cost creep: In partition cases, some issues can lead to transfer to Superior Court, but the clerk generally decides the key issue of sale versus actual partition. Delays can increase carrying costs and litigation expenses, so the decision to mediate versus push for hearing often becomes a cost-control decision rather than a “will it look bad” decision.

Conclusion

In North Carolina, pushing for a hearing instead of settling in mediation usually does not harm a party later just because that party wanted the court to decide the dispute. The real risk is refusing to comply with a mediation order: if the clerk or judge orders mediation, a required participant who fails to attend (or fails to pay required mediator fees) without good cause can face sanctions. The practical next step is to confirm whether mediation has been ordered and, if so, comply with the order or promptly request to be excused.

Talk to a Partition Action Attorney

If a co-owner dispute over real property is heading toward mediation or a hearing, our firm has experienced attorneys who can help explain the process, protect positions on credits and costs, and manage 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.

Category: Partition Action Q&A Series

Author: Pierce Law

Pierce Law Group is a North Carolina law firm focused on probate administration, real estate partition matters, and surplus funds claims across North Carolina. We know these situations often come with stress, family dynamics, and time-sensitive decisions—so we prioritize clear communication, steady guidance, and a practical plan from day one. Our goal is to make a complicated process feel manageable, while protecting what matters most to you.