General Benefits
Mediation helps resolve legal disputes without going to trial. During the process, an impartial third party assists in facilitating a mutually satisfactory agreement or arrangement that works for everyone. The mediational process occurs in the presence of the parties’ respective attorneys or with the parties themselves. Mediation lets the parties reach an agreement without the expense and stress of trial, but it does not forfeit the opportunity to try the case.
Mediation in South Carolina
General Requirements
In SC state, all attorneys have a duty to inform their clients fairly and objectively about mediation. In order for the full process to be valid, the following parties need to physically attend the settlement conference, including:
- The mediator;
- All individual parties; or an officer, director or employee having full authority to settle the claim for a corporate party; or in the case of a governmental agency, a representative of that agency with full authority to negotiate on behalf of the agency and recommend a settlement to the appropriate decision-making body of the agency;
- The party’s counsel of record, if any;
- For any insured party against whom a claim is made, a representative of the insurance carrier who is not the carrier’s outside counsel and who has full authority to settle the claim.
Prior to the mediation conference, the mediator may require that the parties provide a brief memorandum setting forth their position in the dispute and the issues that need to be resolved. This memorandum may be exchanged between the parties. During the meeting, each party and their representatives are required to cooperate with the mediator. The communications during the conference are also confidential.
Family members or friends cannot take part and interfere with the mediation process.
Family Law Requirements
In South Carolina family law cases, there are some additional requirements. Parties must participate in at least three (3) hours of mediation unless a resolution is reached sooner. Upon the parties reaching a conciliation, the mediator shall provide a Memorandum of Agreement to the parties, attorneys of record, and the guardian ad litem of record. It is the obligation of the parties to seek approval of the agreement by the family court.
Family Court Cases
In South Carolina, family court cases are required to attend mediation and participate in good faith. Though attendance and participation are mandatory, parties do not need to reach a settlement during the meeting. The mediator cannot force the parties to enter into an agreement.
The reason that mediation is mandatory in SC state is that over time, courts have found that it allows the parties to have greater control over the outcome of cases that are most personal to them. If both parties are willing to put in a good-faith effort, even some of the most difficult cases can be settled prior to trial, saving individuals the extreme stress and financial strains that comes with impending litigation. This process in the Family Court limits the mediation to the parties, their representatives, the guardian ad litem, and the mediator, preventing any other family members or friends from interfering.
This process is more affordable, allows clients to customize their settlement, it is much quicker than going through the courts, and it takes place in a non-confrontational atmosphere. This additional requirement is very beneficial for Family Law cases.
Benefits in Other Fields of Law
The mediational process is also very effective in fields like personal injury or business law cases. Some SC counties require mediation, similarly to family law. However, this permits both sides of a personal injury matter to present the strengths and weaknesses of their case.
Much less informal and relaxed than litigation, the mediational process permits both parties to resolve their conflicts without the stresses of appearing in the courtroom with strict procedures and rules.
As stated above, the procedure is confidential. This means that even if you gather for a mediation conference and do not come to an agreement, the parties cannot be called to testify at trial about what was heard, said, or the amounts of money that were discussed.
Litigation can be very time consuming and continue for many years. Many mediation conferences are completed in one day, making the whole procedure extremely efficient, unless the case is complicated, an agreement does not result, or more information is needed. It is also beneficial when a party has multiple claims in different areas of law. All claims can be resolved at once during the mediational process.
To Resolve Through Mediation: What Does it Look Like?
It is very beneficial to both parties to resolve a case through mediation. A successful mediational process involves both sides agreeing to a settlement in writing. As part of the agreement, you’ll sign a release promising not to pursue further legal action. The lawyer’s representing the parties will then inform the court that the claim has been settled.
Using mediation for things like divorces can be much less costly than going to court. Going to trial is very expensive as it takes a lot of preparation by the attorney. The mediational process generally takes much less time than litigation. The decrease in time means less hourly fees being paid to attorneys. For example, it may cost $50,000 for legal services when going to trial, but $20,000 to resolve the issues through mediation. This is just an example and can cost even less.
The whole procedure is a beneficial tool that serves as an alternative to going to trial. Once the details of the agreement are clearly written and the legal document is signed, the agreement cannot be appealed. There is a sense of finality that comes with mediation that provides individuals a sense of relief being able to move on with one’s life, while utilizing a much more efficient and cost friendly way to resolve their conflicts.
Learn more about divorce law, about Jennifer Shafer, and contact her for any question.
