Short Answer

Yes. In North Carolina partition cases, the Clerk of Superior Court can order or allow mediation. Mediation often lets co-owners negotiate a buyout, credits for mortgage/tax payments and improvements, and timelines to refinance or sell—avoiding a forced judicial sale. If you cannot reach agreement, the clerk may still order a sale, and the property would be sold under the judicial sale process with upset bids.

Understanding the Problem

North Carolina; a co-owner; wants to use mediation to avoid a court-ordered sale in a partition action. The decision point is whether mediation can produce a binding agreement—such as a buyout with agreed credits and deadlines—before the Clerk of Superior Court orders a sale. Here, you put more down and have been paying the mortgage while your former partner filed a partition seeking sale or buyout.

Apply the Law

Partition actions are special proceedings filed with the Clerk of Superior Court in the county where the property sits. If the property cannot be fairly divided, the court may order a sale and divide the net proceeds. Before that happens, the clerk may order or approve mediation. In mediation, co-owners can agree to a buyout price, credits for carrying costs and improvements, and practical timelines. If the parties settle, the agreement can be entered as a consent order in the partition file. If not, the case proceeds to a sale under the judicial sale statutes, with an upset-bid process.

Key Requirements

• Proper forum: The partition is a special proceeding before the Clerk of Superior Court in the county where the real estate is located.
• When sale is ordered: If a fair in‑kind division is not feasible without substantial injury, the court may order a sale and divide proceeds.
• Mediation availability: The clerk can order or allow mediation in matters before the clerk; parties may also jointly request it.
• Settlement terms: A mediated buyout typically sets price, credits (mortgage, taxes, insurance, necessary repairs, and value-added improvements), any occupancy rent offsets, and a refinance or payment deadline.
• Enforcement: Successful mediations are memorialized by consent order; if no agreement, the case proceeds to sale with judicial sale procedures and upset bids.

What the Statutes Say

• North Carolina Gen. Stat., Chapter 46A (Partition) – Governs partition of real property, including division in kind and sale with distribution of proceeds.
• N.C. Gen. Stat. § 7A‑38.3B (Mediation in matters before the clerk) – Authorizes the Clerk of Superior Court to order mediation in matters within the clerk’s jurisdiction.
• N.C. Gen. Stat., Chapter 1, Article 29A (Judicial sales) – Sets procedures for court-ordered sales and upset bids.
• N.C. Gen. Stat. § 1‑301.2 (Special proceedings; appeal/transfer) – Addresses procedure, transfer, and appeal standards for special proceedings.

Analysis

Apply the Rule to the Facts: Because your case is a partition before the Clerk of Superior Court, mediation is available and commonly used. Your larger down payment and ongoing mortgage/tax payments are exactly the kinds of contributions addressed in a mediated settlement through agreed credits and, if applicable, a limited offset for exclusive occupancy. Mediation can structure a buyout at a set price with a refinance deadline, avoiding a sale. If your co-owner refuses to engage or no agreement is reached, the clerk can order a sale and proceed under judicial sale rules.

Process & Timing

1. Who files: Either party. Where: Clerk of Superior Court in the county where the property is located. What: File a Motion for Order to Mediate (AOC‑G‑300) in the partition file; the clerk may enter an Order Regarding Mediation (AOC‑G‑301) and designate a mediator (AOC‑G‑302). When: Request mediation as early as possible, ideally before any order of sale.
2. The parties select a mediator, exchange documents (down payment proof, mortgage, tax, insurance, and repair records), and attend mediation. Many cases schedule mediation within 30–60 days of the order, but timing can vary by county and mediator availability.
3. If you settle, file a signed memorandum and submit a consent order detailing the buyout price, credits, and deadlines. If not, the clerk may proceed to hearing and, if a sale is ordered, the sale will follow judicial sale procedures with a report of sale and upset‑bid period.

Exceptions & Pitfalls

• Heirs property has additional statutory steps; your co‑ownership by purchase generally follows standard partition rules.
• Credits require proof. Bring records of the down payment, mortgage, taxes, insurance, repairs, and improvements; improvement credits focus on added value, not just cost.
• Exclusive occupancy may prompt a rent offset claim; mediation can negotiate a fair setoff.
• If complex factual disputes arise, parts of the case may be transferred to Superior Court; that can slow resolution.
• Mediation can be ordered, but settlement is voluntary; if the other party won’t deal, be prepared for a sale process with upset bids.

Talk to a Partition Action Attorney

If you’re dealing with a partition case and want to avoid a forced sale, 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.