FAMILY COURT MEDIATION
WHAT IS FAMILY COURT MEDIATION?
In South Carolina, family court litigants are not allowed to even schedule a case for trial without first engaging in mediation. The reason for this because of the many benefits of resolving issues by mutual agreement of the parties rather than by the decision of a judge. The issues involved in mediation are the same issues that would be addressed by a judge – child custody and visitation, child support, alimony, equitable division of the marital estate, and any other issues raised by the parties. Resolving issues in mediation saves both parties substantial litigation expenses, and avoids the acrimony and uncertainty of trial. The best decisions in life are normally those based upon the best information, and no matter how long a trial, a judge will not know as much about the parties’ circumstances as the parties know themselves. In addition, decisions by consent of the parties are more likely to be complied with, substantially reducing the prospect of future litigation.
Usually, I start a mediation session by meeting with everyone together in the same room, during which both sides will be given the opportunity to present their views. I prefer to keep everyone together as we continue to discuss possible solutions to the issues, but often, if I feel it would be more productive, I will have “break-out” sessions in which I meet in private with each side. The conference is informal, and refreshments will be available as we work.
If issues concerning children need to be resolved, I prefer to meet only with the parties (and guardian ad litem, if already involved) at the initial session, without the attorneys present. I have found that parties usually are able to reach an agreement on issues concerning children, without the added expense of attorney participation. However, when financial issues are involved, attorney participation is important.
Mediation conferences are private. Other persons may only attend with the permission of both parties and the mediator. If either party wants another person to participate when I am meeting with the party in a break-out session, I may allow that person to do so if I believe that it would not be disruptive and would promote solutions.
Mediation sessions can be emotional & tiring. Get a good night’s sleep. Eat a good meal beforehand. Keep distractions to a minimum by making arrangements for someone to care for your children and turning off your cell phone while we’re working. Keep an open mind, as our goal is to reach solutions which will benefit both parties and their children.
Anything disclosed in mediation is confidential and cannot be used as evidence. You don’t have to worry that anything you say in mediation, including your views or proposals, will be used against you in Court, as it would be inadmissible. Only the terms of a mutually agreeable settlement will be disclosed to the Court. In addition, if there is something you think is important that I know, but do not want to divulge to the other party, you may share it with me at a break-out session, tell me it is confidential, and I will honor and protect that confidence.
Mediation gives each party absolute veto power over the solutions to the issues, unlike litigation, in which you will have to live with the decision of a third party, the Judge. My role is not to make the decisions for you, my role is to help both of you come to a mutually agreeable decision; the only decisions which will be reached would be mutual decisions of both parties.
Resolving your issues in mediation has three primary advantages to you. First, it avoids the continuing expense of litigation – additional attorney fees and costs to prepare for trial, trying the case, motions, potential appeals. Second, it avoids the emotion and bitterness of trial, which can have an extremely negative impact on future dealings, particularly when children are involved. Third, it avoids the uncertainty of trial, in which your fate (and that of your children) is in the hands of the Judge.
It depends on the number of issues to be resolved, and both parties’ motivation to reach a mutually agreeable solution. Unless agreement is reached sooner, you are required to mediate at least 3 hours. Many cases are resolved in 1 session of 3 hours or less, but even if it takes longer, the time and cost of mediation is a mere fraction of the cost of continued litigation, especially since cases resolved by mediation are less likely to result in future litigation.
I recognize that mediation can be emotionally draining, and parties may need to take a time out.” However the rules governing mediation expressly provide that a “mediation cannot be unilaterally ended without the permission of the mediator.” If someone withdraws from the mediation process without the mediator’s permission, that fact is reported to the family court, which is something you would want to avoid, as it can result in sanctions.
My current hourly charge is $250, which includes not only the time I spend with you in session, but also in reviewing the pleadings and other information supplied to me, talking with your attorneys, and drafting the basic terms of the agreement. Since each side normally pays ½ of my fees, the cost to each party is $125.00 per hour. Each party will be required to make an advance deposit of $400.00 before we begin. The total cost depends on how long it takes to resolve the issues. The vast majority of cases are resolved in one session of 3 hours, but even for those cases that take multiple sessions, the cost is a mere fraction of the cost of continued litigation.
When I have scheduled a mediation conference, I have blocked out my time for that purpose. I am entitled to charge a cancellation fee for 1 hour of my time ($250). However, I don’t penalize parties for a legitimate need to reschedule or for reaching settlements prior to mediation. I do charge for review and preparation time prior to notice of cancellation, so have your attorney promptly let me know of any need to cancel or postpone a scheduled session.