People going through a divorce have shared a life together, have perhaps raised children together, have been on the same “team” in life. Then these people are litigating against each other, sometimes with children in the middle of the fight. Is there another solution?
Alternate Dispute Resolution (ADR) is the umbrella term that describes several methods of resolving matters outside of the courtroom. One form of ADR that is frequently used in divorce cases is mediation. In South Carolina, mediation is required in family court cases that are contested, unless the parties agree to arbitration. ADR Rule 3(a). Following are questions and answers concerning the basic principles of mediation:
Q What is mediation?
A It is informal process in which a third party mediator facilitates settlement discussions between parties. ADR Rule 2(a).
Q Who can be a certified mediator?
A A certified mediator must either be (1) an attorney or (2) a psychologist, master social worker, independent social worker, professional counselor, associate counselor, marital and family therapist, or a licensed physician specializing in psychiatry. ADR Rule15(b)(1). To be certified, the mediator must complete a minimum of forty hours in family court mediation training. ADR Rule 15(b)(2).
Q Can a person serve as a mediator if that person is not certified?
A Yes. If, in the opinion of all of the parties, a person is qualified to be a mediator, either by training or experience, the parties can select a person who is not certified. ADR Rule 4(a)(2).
Q What authority does the mediator have?
A The mediator is authorized to control the conference and the procedures to be followed. ADR Rule 7(a). The mediator has no authority to make decisions or impose settlement. ADR Rule 2(b).
Q Who can attend mediation?
A Mediation conferences are private; other persons may attend only with the permission of the parties, their attorneys, and the mediator. ADR Rule 5 (d). In practice, most times these conferences are attended by the parties, their attorneys, and perhaps expert witnesses such as forensic accountants.
Q If the parties do not settle their case at mediation, can information from the mediation conference be used at trial?
A No, communications during mediation settlement conferences are confidential. ADR Rule 8(a). The parties cannot later introduce as evidence in court any written or oral communications having occurred in a mediation proceeding. Id.
Q What is the difference between mediation and arbitration?
A In mediation, the parties voluntarily reach a settlement or leave the mediation without having reached a settlement. In arbitration, a third-party arbitrator decides the issues in controversy. That decision can either be binding or not binding, as agreed upon by the parties. ADR Rule 2.