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Unpublished Court of Appeals opinion provides guidance for mediators regarding admissibility of documents provided during mediation

From Guest Blogger, the Honorable Barry W. Knobel

The South Carolina Court of Appeals filed what I consider to be an important unpublished family court opinion which, most probably, should have been published, in that it could have provided precedential guidance for family court mediators and attorneys participating in mediation.  [On a side note, an excellent family court judge heard the case and the attorneys involved in the appeal are excellent family court/appellate attorneys; and I can imagine that for the newer members of the family law bar, the trial would have been an interesting one to observe (although I could guess that the trial judge would use other characterizations than “interesting.”)]

The case is Hicks v. Hicks, and while the core issues on appeal dealt with an alimony award and the requirement that the husband pay for half the cost in the preparation of a QDRO, the most intriguing and, arguably for mediators, the most interesting issue centered on the husband’s objection at trial to the admissibility of medicals bills which had been produced by the wife’s attorney “during mediation.”  Let me give you the exact two paragraphs-of-interest from the opinion:

Husband next argues the family court erred in admitting testimony about certain medical bills, in failing to make sufficient findings about them, and in awarding Wife funds from the marital estate to pay them.  He claims he was unaware that the medical bills were an issue because they were never listed on Wife’s financial declaration or provided to him during discovery.  Although Wife’s attorney produced the bills during mediation, one of his objections to their admissibility was the very fact that they were communications during mediation and the agreement to mediate prohibited their introduction during the final hearing. [emphasis from blogger]. Finally, he asserts that the late disclosure of these bills—on the financial declaration Wife provided to the court the day of the final hearing—prevented him from asserting various defenses, including (1) that some of the bills were for expenses incurred by Wife after the date of filing of her divorce action, (2) that the statute of limitations may have expired on some of the expenses, and (3) that the medical providers may have been willing to compromise on some of the expenses for less than their face value.  We find no merit to any of these arguments.

We hold the very fact that Husband was made aware of these bills during the mediation is a valid factor to support a determination that the family court acted within its discretion in allowing evidence that these expenses were incurred during the marriage.  See State v. Morris, 376 S.C. 189, 205, 656 S.E.2d 359, 368 (2008) (“The admission or exclusion of evidence is left to the sound discretion of the trial court, and the court’s decision will not be reversed absent an abuse of discretion.”) ( quoted in S.C. Dep’t of Soc. Servs. v. Lisa. C., 380 S.C. 406, 411, 669 S.E.2d 647, 650 (Ct. App. 2008)).  Furthermore, the Alternative Dispute Resolution Rules do not expressly restrict the admission of evidentiary material provided during mediation if that material was not created solely for the mediation. [emphasis added by blogger]. See Rule 7(b)(3), ADR (authorizing a mediator to “define and describe” “[t]he inadmissibility of conduct and statements as evidence in any arbitral, judicial or other proceeding”); Rule 8(a), ADR (“Communications during a mediation settlement conference shall be confidential.”) (emphasis added); Rule 8(a)(5), ADR (prohibiting the reliance on or introduction as evidence in any proceeding “[a]ll records, reports or other documents created solely for use in the mediation.” (emphasis added).

As more and more counties are adopting mandatory mediation, at least on the family court side, there is a compelling need for attorneys to have more than a passing knowledge of the ADR Rules, especially if the Rules are being cited with more frequency in appellate court opinions.

I also found it fascinating that the COA panel upheld the family court judge’s right not to conduct a Rule 59 hearing at least, in part, because of the thoroughness of the Rule 59 motion filed by the husband’s attorney:

Husband’s motion was seven single-spaced typewritten pages long, set forth arguments on the issues raised, and gave citations to legal authority; therefore, it was the functional equivalent of a brief, and we hold the family court was not required to hold oral argument or request additional written submissions before deciding the motion. …

Let me please add this caveat: Please take your time to read these unpublished opinions and please do not simply dismiss them because they are of “no precedential value.” In an unpublished opinion of this length and depth, rest assured that this case was important to the panel of judges assigned to hear and decide it; and I can reasonably assure you that they will not forget this case in the future, even though you may not be able to cite it in the present.  It also should provide guidance to us mediators in making us more cognizant of, and sensitive to, the mediation materials we receive prior to the mediation and those which we generate during the mediation.

Please read this case whenever you have time, and remember that you must practice family law fearfully.

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