Short Answer

Yes. In North Carolina partition cases handled by the Clerk of Superior Court, mediation is not automatic; the clerk may order it, but also may waive it for good cause. You can file a motion asking the clerk to bypass mediation or to rescind a prior mediation order if mediation would be futile, unduly costly, or delay necessary relief. If mediation has already been ordered, you must comply unless the clerk changes the order.

Understanding the Problem

You are in a North Carolina partition special proceeding asking the Clerk of Superior Court to order a sale, appoint a commissioner, set a move-out date, and bypass mediation. Can you ask the clerk to skip mediation so the sale issues can be decided at the scheduled hearing, especially since one co-owner currently lives in the house?

Apply the Law

Under North Carolina law, the Clerk of Superior Court has discretion to order mediation in matters within the clerk’s original jurisdiction, which includes partition proceedings. Mediation is used to promote efficient, economical resolution, but it is not mandatory unless ordered. A party may ask the clerk to decline to order mediation or to modify a mediation order for good cause, such as futility after failed negotiations, time-sensitive relief, disproportionate cost, or when the dispute turns on legal issues the clerk must decide. The partition case itself proceeds in the county where the land sits, and any order of the clerk that affects substantial rights carries short review deadlines.

Key Requirements

• Discretionary program: Mediation before the clerk is discretionary; the clerk decides whether to order it in a partition case.
• Good cause to bypass: Show specific reasons why mediation will not help (for example, impasse already reached, urgent need to protect/sell property, or the issue is purely legal).
• Proper forum and notice: File your motion in the Clerk of Superior Court in the county where the property is located and serve all co-owners.
• Compliance unless modified: If a mediation order is already in place, attend unless the clerk modifies the order; you may also request relief from mediator fees if needed.
• Short appeal window: Certain clerk orders carry tight review timelines in superior court; act promptly if you intend to seek review.

What the Statutes Say

• North Carolina Gen. Stat. § 7A-38.3B (Mediation in matters before the clerk) – Authorizes the clerk to order mediation and governs mediation in clerk proceedings.
• North Carolina Gen. Stat. Chapter 46A (Partition) – Sets procedures for partition in kind or by sale and appointment of commissioners.
• North Carolina Gen. Stat. § 1-301.2 (Special proceedings; transfer and appeal) – Provides mechanisms for transfer and review of clerk orders in special proceedings.

Analysis

Apply the Rule to the Facts: You and a co-owner already tried to reach agreement and now seek a sale with a commissioner appointed. Those facts support a “good cause” argument that mediation will not be productive and may delay necessary relief. Because one co-owner occupies the home and upkeep is disputed, you can also argue the case needs prompt scheduling before the clerk to address sale logistics and possession terms, making mediation less useful at this stage.

Process & Timing

1. Who files: Any co-owner (through counsel) seeking to bypass mediation. Where: Office of the Clerk of Superior Court (Special Proceedings), in the county where the property is located. What: A written motion to bypass or oppose mediation, asking the clerk to proceed with the partition sale hearing and, if appropriate, to appoint a commissioner; reference any existing mediation order and request modification. If mediation is ordered, the clerk will typically issue an order (AOC-G-301) and designate a mediator (AOC-G-302); a party may seek fee relief (AOC-G-306T) if needed. When: File before the mediation order is entered or as soon as possible after, and before any mediator is designated or deadlines run.
2. The clerk will calendar your motion for hearing and consider whether mediation would aid resolution. Timeframes vary by county; expect several weeks for a hearing date unless the clerk grants expedited scheduling for good cause.
3. After the hearing, the clerk will enter a written order granting or denying the request. If granted, the matter proceeds to the partition hearing (sale vs. in-kind), appointment of a commissioner, and related directives. If denied, the case follows the mediation order and deadlines.

Exceptions & Pitfalls

• If the clerk has not ordered mediation, there may be nothing to “skip.” Your case can proceed directly to the scheduled partition hearing.
• Do not ignore a mediation order. Nonattendance can lead to fee assessments or other consequences; request a modification or waiver first.
• Serve all co-owners. Defects in notice can delay the hearing and undermine any order.
• Possession/move-out requests are sensitive. The clerk can manage the proceeding and issue orders to facilitate sale, but you may need tailored relief and clear timelines in any order.
• If cost is the barrier, ask the clerk to reallocate mediator fees or seek fee relief rather than skipping mediation altogether.

Talk to a Partition Action Attorney

If you’re dealing with a partition case and want to avoid delays from mediation, 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.