What is Mediation?

Mediation is the process in which a “third party neutral,” the mediator, attempts to help parties reach resolution of their disputes.  “Third party neutral” means that the mediator is not a party to the dispute or an attorney for any party to the dispute and is neutral–that is not an advocate for either party’s position.  The mediator cannot force or compel any action. Mediation is commonly used in all civil litigation and is becoming increasing required in all but the simplest disputed family court cases.  Beginning in 2016, South Carolina began requiring mediation for all contested family court cases statewide.  If the parties cannot agree on a mediator, they can ask the court to appoint one.

When an attorney is the person handling the mediation or abitration, that attorney is bound by the requirements of South Carolina Rule of Professional Conduct 2.4.  Included in that obligation are requirements that “[a] lawyer serving as a third party neutral shall inform unrepresented parties that the lawyer is not representing them. When the lawyer knows or reasonably should know that a party does not understand the lawyer’s role in the matter, the lawyer shall explain the difference between the lawyer’s role as a third party neutral and a lawyer’s role as one who represents a client.” Rule of Professional Conduct 2.4(b).

During mediation the parties meet with the mediator (generally with their attorneys present) and the mediator attempts to help the parties reach an agreement that resolves their dispute with the goal of that mediated agreement becoming a court order.   The mediator will typically practice “shuttle diplomacy”: placing the parties in separate rooms and going between the parties in an attempt to narrow the disputed issues and determine if a complete resolution of the case can be accomplished.  Mediation is privileged.  This means that what is said in mediation–whether by the mediator, the parties, or their attorneys–cannot be used in court and the mediator cannot be called as a witness on the issue of what admissions the parties made or resolutions they proposed at mediation.

A mediator cannot act as an advocate for either party, nor can the mediator provide legal advice.  What the mediator can do is help the parties think realistically about what might happen if the case goes to trial and the judge decides the contested issues.  A mediator can also help the parties think creatively about resolutions to their disputes in order to achieve “win-win” results in which both parties are better off then they might be if they let a judge decide the issues.

Often mediation is needed because one party to a dispute does not have an attorney and has unrealistic expectations about what will happen at trial.  Other times a party has an attorney but that attorney has not given the client realistic advice about the risks of proceeding to trial.  Sometimes mediation is successful because the parties are unwilling to reveal their case’s strengths and weaknesses to the other side in discussing settlement, but they can discuss these strengths and weaknesses with the mediator.

Mediation can be done at any stage of the litigation process.  Mediation can be attempted before any lawsuit is filed; mediation is even being done after trial when a case is on appeal in the hope of resolving the issues on appeal. Mediation can be used to resolve temporary issues (which would result in a temporary order) or final issues (which would result in a final order).  There are times when some disputed issues can be resolved in mediation and others cannot.  The parties can then reach a partial agreement and let the judge decide the remaining disputed issues.  When it is clear to the mediator that the parties cannot reach agreement on any more issues through mediation, the mediator may declare an “impasse.”  When mediation has reached an impasse the court will not require further mediation before setting the case for trial.

There are few family law cases in which settlement is not preferable to trial.  A trial is emotionally and physically stressful and expensive.  Trials often lead to further litigation, such as post-trial motions, or appeals and court-approved agreements are harder to modify than judicially imposed decisions.

Further, trial takes important decisions out of the parties’ control and places these decisions in the judge’s hands.  While judges attempt to be thoughtful and diligent, they have limited time to consider each case that comes before them and can never get a full and complete picture of the parties’ circumstances.  Judges are constrained by statute and case law and cannot make decisions that would be “just” but not comport with these legal constraints.  The parties, however, do not have such constraints in reaching an agreement.

I typically only want to go to trial when it is clear that trial will be required to resolve the dispute: either because compromise is not possible (it is difficult to reach a compromise on terminating parental rights or terminating/supervising visitation) or because it is clear that further mediation will not resolve the case.  I have sometimes mediated a case over two or three days in order to reach a settlement, but avoided a five to ten day trial–and subsequent post-trial motions and appeal–by doing so.

A mediator does not force the parties to do anything but merely works towards having them reach an agreement.  Mediation is a very effective tool for resolving complex and emotionally charged disputes.

Mediators can go through training to become certified by South Carolina’s Board of Arbitrator and Mediator Certification.  Such mediators are eligible to be appointed by the courts.   Parties can chose to use mediators who are not certified, but the court cannot require them to use such uncertified mediators.  All mediators, whether certified or uncertified, must comply with the rules regarding alternative dispute resolution.

Mediators are typically paid by the parties requesting their services, though the court can reallocate the mediator’s fees at trial.

Mr. Forman’s hourly rate for mediation is $400.00.  For co-mediation with his wife, Karen Klickstein-Forman, who has a Masters Degree in Social Work from University of Pennsylvania and a Law Degree from Charleston School of Law and is a Certified Mediator, the rate is $500.00 per hour ($450.00 per hour on Saturdays with a four-hour minimum).  Both Mr. Forman and Ms. Klickstein-Forman have undertaken Advanced Family Law Mediation training.

If you desire Mr. Forman to act as a mediator or represent you as your attorney in a mediation, you are welcome to contact him here.  Ms. Klickstein-Forman’s solo mediation services rate is $200.00 per hour.  To contact her directly you may email her or call her at (843) 224-8010.

Click here for further information on Mr. Forman’s mediation services

For information on turning domestic agreements into binding court orders:

How Does One Turn a Domestic Agreement into a Binding Court Order?