What is Mediation and Arbitration?
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.
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”: 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 mediation is not advisable before seeking a 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.
Arbitration is the process by which the parties agree to allow a trained arbitrator (rather than a judge) decide their dispute. The decision then goes to a judge in the applicable court for ratification–the process by which the arbitrator’s decision becomes a court order–but there are few bases upon which the court can refuse to ratify the arbitrator’s decision. A major distinction between mediation and arbitration is that the mediator has no ability to make the parties reach an agreement against their will while an arbitrator, much like a judge, can render an enforceable decision that the parties do not agree with but that still is binding upon them.
Litigants chose arbitration over trial for a number of reasons. Arbitration is less formal and not subject to the rules of evidence. Thus, it is often less costly to arbitrate a case rather than take a case to trial. Arbitration can be done quickly, as there is no need to wait for limited docket time to set a case for trial. Arbitration can take place at the parties’ and their attorneys’ convenience; the court decides when trial takes place with minimal consideration of such convenience. Parties select their arbitrator; they cannot select the judge. Arbitration is typically used in commercial disputes but is increasingly being used to resolve family court disputes. It is currently unclear under South Carolina law whether arbitration can lead to a binding decision on child custody and visitation but arbitration can clearly be used to reach binding decisions on all other family court issues.
In family court, the parties must agree to arbitration and must agree to the arbitrator. The parties can further agree to limit the issues that the arbitrator can arbitrate. They can even agree that the arbitrator must reach a decision within certain parameters. For example, in a child support arbitration, they could agree that the arbitrator cannot award child support less than $600.00 a month or greater than $1,000.00 a month.
Mediators and arbitrators can go through training to become certified by South Carolina’s Board of Arbitrator and Mediator Certification. Such mediators or arbitrators are eligible to be appointed by the courts. Parties can chose to use mediators or arbitrations who are not certified, but the court cannot require them to use such uncertified mediators or arbitrators. All mediators or arbitrators (whether certified or uncertified) must comply with the rules regarding alternative dispute resolution.
Both mediators and arbitrators are typically paid by the parties requesting their services, though the court can reallocate the mediators or arbitrators’ fees at trial or, if the parties authorize it, the arbitrator can make allocation of his or her fees part of the decision.
Mr. Forman’s hourly rate for mediation is $175.00; for co-mediation with his wife, Karen Klickstein-Forman, who is a Licensed Social Worker and Certified Mediator, the rate is $250.00 per hour. If you desire Mr. Forman to act as a mediator or arbitrator, or represent you as your attorney in a mediation or arbitration, you are welcome to click here to contact his office.
For information on turning domestic agreements into binding court orders: