MEDIATION
WHAT IS
Mediation is defined by Merriam-Webster Dictionary as: "a. intervention between conflicting parties to promote reconciliation, settlement, or compromise; b. indirect conveyance or communication through an intermediary; c. transmission by an intermediate mechanism or agency."
Black's Law Dictionary defines mediation as: "Intervention; interposition; the act of a third person who interferes between two contending parties with a view to reconcile them or persuade them to adjust or settle their dispute."
Both of these definitions are fairly accurate. In the Family Court setting, mediation is designed to offer parties a place and method to resolve their conflict without having to wait for and pay for a trial, before a Judge.
The South Carolina Alternative Dispute Resolution Rules define mediation as: "An informal process in which a third-party mediator facilitates settlement discussions between parties. Any settlement is voluntary. In the absence of settlement, the parties lose none of their rights to trial."
ARE THERE RULES FOR MEDIATION?
Yes. As referenced above, the mediation process is governed by the Alternative Dispute Resolution Rules. A full copy of the rules can be found on the website for the South Carolina Judicial Branch, click the ADR tab. These rules govern the conduct of the litigants, lawyers, and the mediator.
Some important rules for parties to know:
-
The entire process is confidential. This means the mediator is bound by rules of confidentiality and cannot disclose information learned about the parties or their case.
-
If the case is not resolved, the offers made at mediation are not admissible in court. This allows parties to be open and freely make offers, without fear it may be used against them in the future.
-
The mediator may not be a witness at any future trial.
-
Parties can settle some issues, even if they cannot settle all issues. This can narrow the scope of a trial and provide significant benefits to the parties.
WHY DO PARTIES MEDIATE CASES?
The short answer is; because the rules require it. In South Carolina, mediation is mandatory for any case that is not settled or resolved. Litigants cannot request a final contested trial, without first providing proof that mediation has been completed. Therefore, most family court mediations in South Carolina are initiated by the attorney(s) for the litigants.
WHAT SHOULD I EXPECT TO HAPPEN AT MEDIATION?
Usually, the lawyers and their clients agree to use a specific mediator. However, there are situations where a Family Court Judge may order a mediation to take place within a proscribed period of time, or with a specific mediator. The lawyers also usually agree to the location for the mediation to take place.
Most mediators will ask for information from the lawyers before the mediation so that she may familiarize herself with the parties and the issues to be resolved. Sometimes, the mediator may meet briefly with the lawyers before the mediation begins to learn additional helpful mediation.
Unlike scenes in movies or television shows, typically the parties and their attorneys are all in separate rooms for the entirety of the mediation process. However, if a mediator or the parties believe it would be beneficial to have the parties meet together, that can happen. Because the parties usually begin the process in separate rooms, the mediator typically begins the individual or "caucus" meetings with the Plaintiff. This is just procedural because you have to start somewhere.
Usually, the first meeting with all parties will simply be the mediator going over the rules of mediation with the parties and having the parties sign an agreement to mediate that acknowledges their understanding of the rules and the process.
After all parties have signed the agreement to mediate, the mediator will begin gathering information about the case and asking the parties to begin presenting offers that the mediator can take to the other side/party. I describe this somewhat like buying a car. You decide on the car you think you want and then you start negotiating the price, but the buyer never really talks to the person making the call on the price, the salesman goes back and forth with the offers. In mediation, the mediator is your salesman!
Hopefully, if everyone is willing to work hard, make compromises and seek resolution, the case will be settled by the end of the mediation. Typically, the parties and the lawyers will want a document which outlines all the terms of the agreement. The process of creating a written document which addresses all the concerns of the parties will take some time, but it removes any doubt as to what the agreement is or what the expectations are. By the end of the mediation, the parties, the lawyers, and sometimes the mediator are tired. When the mediator and/or the lawyers are busy working on the language of the agreement, the parties can feel like time is being wasted. But rest assured, having a written document, which addresses each and every detail is well worth the additional time.
WHAT HAPPENS AFTER MEDIATION?
If the mediation was a success, the lawyers will request a short hearing before a Judge to have the agreement approved and incorporated into a final court order.
If the mediation was unsuccessful the lawyers will confer with the mediator and determine how long they think the case will need for trial. The proof of completion of mediation is filed with the Court and then a trial for the requisite amount of time is requested. The parties then wait their turn for a trial.
HOW MUCH DOES MEDIATION COST?
The cost to the parties for litigation has several variables; the length of time of the mediation, hourly fees of attorneys, and hourly fees of the mediator. Typically, mediators charge a set fee, per hour and that is usually divided between the parties. However, there may be cases whereby agreement or by court order, one party is required to pay more or less than one-half of the mediator fees. Regardless of the length of a mediation, or the fees charged by the lawyers or the mediator, resolving disputes through mediation is almost always significantly less expensive than preparing for and completing the trial process. Ms. Thomason's current hourly fees are set forth on the Mediations Rates page.