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A Closer Look at What Expanded Mandatory Mediation Really Means

Posted by J. Benjamin Stevens | Mar 24, 2013 | 0 Comments

I am pleased to publish the following Guest Post from retired Family Court Judge Barry Knobel, who is a certified family court mediator with a statewide mediation and arbitration practice:

Pursuant to an Order issued on March 14, 2013, the South Carolina Supreme Court expanded mandatory ADR for family court cases into the First, Second, Seventh, and Ninth Circuits, and also into Georgetown, Marion, Kershaw and Darlington counties.  This expanded ADR Rule affects those cases filed on or after June 1, 2013. The total number of counties in South Carolina now requiring mandatory mediation (ADR) before a final hearing can be scheduled is 33 (out of 46… if you're even remotely interested, these remaining counties are: Abbeville, Chester, Chesterfield, Dillon, Edgefield, Fairfield, Greenwood, Lancaster, Laurens, Marlboro, McCormick, Newberry, and Saluda).

In that pretrial family court mediation in virtually every county in this State has already long been a common practice, I seriously doubt that many will see any significant difference.  There are many excellent family law attorneys throughout South Carolina who are now, and have been for some time, successfully mediating and settling cases; and the family court bench and bar have (almost) universally embraced mediation (and perhaps in time, binding arbitration) as a common stage within the life cycle of a family court case.

In reading some recent blog commentaries regarding the additional cost that mandatory mediation would allegedly bring, for obvious reasons I would take issue with that position and argue that settling a case at mediation always results in a substantial cost savings to your clients versus going forward with a contested trial.  However, I rarely encounter attorneys who have even requested that their chief administrative judge exempt their case from mediation, and ADR Rule 5(e) expressly provides you with that option:

ADR Rule 5(e):  Motion to Defer or Exempt from ADR. A party may file a motion to defer an ADR conference or exempt a case from ADR for case specific reasons. For good cause, the Chief Judge for Administrative Purposes of the circuit may grant the motion.  For example, it may be appropriate to defer an ADR conference or completely exempt a case from the requirement of ADR where a party is unable to participate due to incarceration or mental or physical condition.

Also, ADR Rule 9(d) at the very least allows a party to request an exemption from the payment of mediation fees due to indigency (ADR Rule 9(d)  Indigent Cases. Where a mediator has been appointed, a party may move before the Chief Judge for Administrative Purposes to be exempted from payment of neutral fees and expenses based upon indigency. Applications for indigency shall be filed no later than ten (10) days after the ADR conference has been concluded. Determination of indigency shall be in the sole discretion of the Chief Judge for Administrative Purposes.)

The practice of family law is a mind-numbing and energy-sapping experience for even the most committed family law practitioners; and mediation at the very least offers your clients and you an opportunity to bring a negotiated end to the hell of the “family court experience”.

I want to extend my personal thanks to Judge Knobel for allowing me to publish his insightful post on my blog.  You can learn more about his statewide mediation and arbitration practice

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J. Benjamin Stevens

Senior Partner


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