What Is It And Why Do I Care?

Q. What is Mediation?

A. Mediation is defined as “intervention between conflicting parties to promote reconciliation, settlement, or compromise”. Mediation is a confidential process by which Parties can make informed decisions on settling outstanding issues relating to separation, divorce, custody or other family-related matters. Conflicting parties meet informally with a trained, impartial Mediator to work out a voluntary settlement that works for both sides of the disagreement, without having to resort to a court hearing. A Mediator doesn’t make the decisions and does not require any party to agree to accept any particular settlement. If agreement cannot be reached, the parties may then proceed to court, where the judge will impose his or her decisions upon them. Everything said in a Mediation is confidential and cannot be later used against or for either party in court.

Q. Why Should I Get Mediation?

A. As of June 1, 2013, mediation (or, alternative dispute resolution aka “ADR”) is required in most of the counties in the State of South Carolina, including Anderson, Oconee, and Pickens, for all cases filed in civil court or family court. What that means is that before appearing before a judge for a final hearing, you must try to work out your differences in Alternative Dispute Resolution, such as arbitration or mediation. ADR Rule 6(g), issued by the South Carolina Judicial Department, requires that “Parties must participate in at least three (3) hours of mediation unless an agreement is reached sooner.”

Q. How does Mediation differ from Arbitration?

A. In an arbitration, a qualified neutral individual (the “Arbitrator”) listens to both sides and then makes a settlement decision for the Parties that may be binding on them. In a mediation, the qualified neutral individual (the “Mediator”) acts as a facilitator between the Parties, allowing them to make their OWN decisions and create their own resolutions.

Q. What are the Advantages to Mediation?

A. In mediation, both Parties have an opportunity to be heard and work out the details of their agreements privately and between themselves with the help of the Mediator. Mediation gives the Parties control over their own negotiated agreements without the Court stepping in. The Mediator doesn’t tell either party what they should or shouldn’t do, instead, the Mediator facilitates discussion by allowing the parties to make their own choices based upon their needs and their unique situations.

Everyone’s situation is different and requires a different solution than may be available through the Court. Mediation empowers the Parties to resolve their differences for themselves.

Mediations are more informal, generally much less expensive, and take less time than negotiations through attorneys and the Court. Every participant in a mediation must sign an Agreement to Mediate which acknowledges the confidentiality of the procedure and the disclosures made during the mediation; the agreement of the Parties to produce the required documents needed to settle the issues involved; payment of the Mediator’s fees and protection from subpoena or other litigation for the Mediator regarding any matters discussed during the mediation.

Q. How Much does Mediation Cost?

A. Mediators typically charge an hourly fee, with a two- three hour minimum, depending on the issues to be decided. The cost of mediation is shared between the Parties.

Q. Who Can be a Mediator?

A. Anyone with the proper training can be a Mediator, however, South Carolina will only certify Mediators who are Attorneys or Mental Health Professionals, who have completed a 40-hour training course in Mediation and who have an exemplary ethics record with the South Carolina Bar Association.

Q. When is Mediation NOT Recommended?

A. If the Parties to the mediation cannot speak openly and freely to each other or to the Mediator about their situation; if there is a history of physical or mental abuse between the Parties such that they cannot be civil under any circumstances; or, if one or more of the Parties suffers from disabling mental or emotional defect such that they would not be able to fully understand and participate in the process, then the mediation process would not be appropriate.

The situations where mediation would not be appropriate are rare. When mediation works, it works well at empowering both Parties to negotiate effectively together. Mediation provides a healthy model for conflict resolution and can strengthen the Parties’ subsequent relationship – even if just as joint custodial parents. It provides a private forum for discussing meaningful family concerns and values while allowing the Parties to arrive at creative settlement alternatives that are not otherwise available through the Court.

One important point to consider; no legal rights are waived by participating in a mediation.

© 2018 – Carol A. Johnson, Esq., certified South Carolina Family Court Mediator