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  • Dan Kienker

MEDIATION? JUST LIKE ON TV?

You've seen those "lawyer shows" where the parties and their lawyers are sitting across a conference room table from each other, shouting at each other, with the attorneys threatening to take the other party to Court and sue them for all they have! It makes for good drama but it's not like that at all.

In South Carolina Family Court, before the litigants can take their case before a Judge, they have to attempt to resolve the issues of their case through mediation. Mediation is conducted by a licensed attorney who has undergone an extensive number of hours of mediation training before he or she can be certified as a Family Court Mediator. A Mediator is a neutral party who doesn't represent either party. He or she cannot give legal advice and cannot be compelled to testify at trial.

Mediation typically comes into play after the attorneys for each side with their respective clients, have been unable to resolve the case, have reached a roadblock over some issue or issues their clients cannot get past or agree on. The attorneys then decide which of many certified family court mediators they would like to have help settle their case.

When a mediator has been selected, he or she is contacted by attorneys to coordinate a date and place to conduct mediation. Mediation will either take place at one of the attorneys' offices, or the mediator's office. The selected Mediator will send each party a list of instructions on how the mediation will be conducted, his or her fee, when payable (almost always by the day of mediation). The attorneys will also provide the mediator relevant documents pertaining to the case for their respective clients so the Mediator can get an idea of what the issues are.

On the day of the mediation, you and your attorney will be in one conference room and the other party, and their attorney will be in another conference room. You will probably never see the other party during mediation.

After laying out the "ground rules" for how mediation will be conducted, the mediator will begin by visiting with one party and their attorney, take down that parties' settlement offer and take it to the other party down the hallway. The role of the mediator is not to give legal advice, cajole, force or persuade either party into agreeing to anything. Instead, the Mediator will advise the parties as to how realistic an offer is and suggest possible alternative counteroffers or rely on his trial experience in family court to advise a client her settlement offer on a particular issue is unrealistic and unlikely to be approve if the case goes to trial.

At the end of mediation, the parties will have either settled their case, an agreement is then drafted and signed by the parties and their attorneys and presented to the Judge at a Final Hearing for approval. If, after a good-faith effort to mediate their case, the parties reach an impasse, then the case can be tried before a Judge who will decide the issues for the parties.

The thing to remember about mediation is that it is far better for the parties to try and settle their case during mediation because the parties know far more about their assets, the value, and sentiment attached to each than any Judge. This is your chance to come up with your own agreement you both can live with rather than have a stranger in a black robe decide for you.


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