Stopping case dismissal under the 365 day rule when the other party won’t mediate

Posted Monday, June 22nd, 2015 by Gregory Forman
Filed under Family Court Procedure, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Specific

Within the past few years the South Carolina Supreme Court has promulgated one rule in which family court cases are dismissed if no final hearing is requested within 365 days of the date the action is filed and another rule in which cases need to be mediated in most counties (including all three local countries: Berkeley, Charleston and Dorchester) before the docketing clerk can grant trial dates.

The intersection of these two rules can cause problems for attorneys–especially attorneys who want to take on representation when the 365 day limit is approaching. How does one stop a case from being dismissed when the other side won’t agree to mediation? Even filing and obtaining an expedited motion to compel mediation might not be sufficient to insure that the mediation takes place before 365 days run.

There is a solution. Alternative Dispute Resolution (ADR) form 106 can be used for hearing requests in the family court. Under this form, if the matter is contested, one either needs to submit the mediator’s report (ADR form 107) or a request to appoint a mediator (ADR form 109) with the hearing request.

As part of the Supreme Court’s August 27, 2014 Administrative Order revising implementation of the 365 day rule, “In the event no request for a final hearing is received by the Clerk of Court within the time period prescribed and there is no other order by the Chief Administrative Judge extending the case, the Clerk of Court shall prepare an Order of Dismissal without prejudice and provide the order and file for review by the Chief Administrative Judge.” It would appear that filing ADR form 106 along with ADR form 109 with the clerk’s office forestalls the preparation of the Order of Dismissal. This is because a request for final hearing has been submitted and ADR form 106 appears to authorize such hearing requests even when mediation has not been scheduled so long as a request for appointment of a mediator is filed concurrently.

Thus it appears that one should be able to forestall dismissal under the 365 day rule on the 365th day even if mediation has not been scheduled. Attorneys worried about dismissal who cannot get mediation scheduled before the 365 days elapse should attempt this workaround.

15 thoughts on Stopping case dismissal under the 365 day rule when the other party won’t mediate

  1. Good Luck! Our Clerk’s office will not accept a request for a contested hearing that will last longer than one hour, without an ADR report. Do you guys really have a problem getting mediation completed with another lawyer on the other side? When I have a pro se party who won’t cooperate, I just set the mediation and when they don’t show, the mediator submits report of no settlement. I wonder if I don’t see mediations as a problem because we have been a mandatory mediation county for as long as I can remember? It just really isn’t that much of a problem in my practice. I am still fascinated that we have a staff person dedicated to getting mediators assigned and other counties don’t. I can’t imagine what our Judges would say if they had to sign multiple orders appointing mediators on a regular basis. I guess I should be thankful that we seem to have gotten it right here in Anderson!

    1. Nancy,

      I am equally concerned with the problem of when you want to take on representation of a case that was filed more than 11 months ago and simply can’t get mediation done before 365 days have elapsed. It would appear filing ADR form 106 is a potential solution.

  2. Jim Sarratt says:

    I have to take issue with mediators in Anderson who are signing off that a mediation occurred if a pro se party does not show up. A mediation has not occurred. I think a better approach would be to seek a waiver or compel a mediation.

  3. Jim: I may have misled folks. I did not mean to indicate that we have mediators who will falsify mediation reports. But, if I schedule the mediation and notify the opposing party and they do not show, then the mediator indicates that my client (and I, in some cases) were present and prepared to mediate and that the other side did not attend and therefore, there is an impasse. That report satisfies our Clerk/Judges and allows us to request a final hearing. I have had that happen only a few times. I did have a case where the defendant hired a lawyer approximately a week before the mediation and I refused to continue the mediation (I would normally cooperate with any request from a fellow lawyer for a continuance) because I knew it was just a delay tactic. I apologized to the lawyer for not being able to accommodate and insisted the mediation go forward. Not surprisingly, neither the client or the lawyer showed up. Mediator completed an accurate mediation report and I requested my final hearing.

    BUT…I WANT TO REITERATE—problems with mediation in Anderson are the exception to the rule. I would say a large majority of our cases settle at mediation. We have some fabulous mediators in our area, who do a great job.

    Also, we have Court appointed mediators generated by the Court system so if the parties cannot agree who to use, then you use the mediator appointed by the Court. So, we never have a situation where you are wondering who will mediate. Either you agree to someone or use the person appointed by the Court, which happens automatically around day 160 (??? I think) without you filing a motion or doing anything else.

    I hope that clears up my comments.


    Nancy Jo.

  4. Jim Sarratt says:

    Nancy Jo

    It does. Thanks for the clarification.

  5. I have had consistent success with filing a motion to compel mediation when dealing with uncooperative or unresponsive opposing counsel, or filing a motion and proposed Order waiving the mediation requirement when dealing with uncooperative or unresponsive pro se litigants.

    Of course, with the 365 landscape changing with the promulgation of new forms, etc., I don’t know how long I can continue such a path.

  6. MJ Goodwin says:

    I have had one situation in Anderson in which a very difficult pro se client repeatedly put up blocks to mediation: didn’t like the mediator, didn’t want the dates set forth, etc. This was before the new rule allowing submission of the form to the Clerk. So there will be some times in Anderson when the new form will be useful.

  7. R. Dain says:

    I tried this approach today in Richland County. It did not work.

    In my case, the mediation center was appointed to handle the mediation despite my protests. (In another case, I used this center and both opposing counsel and I left agreeing the mediator actually set this case backwards and we would never use them again). They don’t return calls to schedule mediation and now the 365-day deadline is upon us.

    The admin judge’s (Monét Pincus) position is that filing a request for a final hearing along with the appointment of a (new) mediator does not stop the 365-day rule. Furthermore, I was advised they are disallowed from accepting a consent order to extend even if there is good cause because then all attorneys would be using that mechanism to extend cases. There was a statement indicating this had been verified with some higher source. Judge Pincus seems to be thorough with such fine points of procedure so I assume she her office would be a solid source for information.

    Anyway, the remedy for us is to file a motion to extend and include cause. If the reason seems legitimate, the court will not dismiss the case and will schedule the motion instead for a final decision at the hearing.

  8. Jessica Schultz says:

    I have a question does if there is a order of dismissal in place because of the 365 day benchmark does that mean that everything goes back to the way it was before they’re original order was put into effect I know nothing about the law and just wanted to get reassurance that what I interpreted from the order was what it meant

  9. Emily Spearman says:

    My divorce case was dismissed due to this rule. I filed a motion to restore the case and it was denied. I just found out this afternoon and I don’t understand why my motion was dismissed.

    He has not been difficult to deal with, not just with me and my lawyer but to his own lawyer who filed a motion to be removed from the case.

    Why would my motion be denied? Does this dismiss the the temp alimony order, which he has not paid a dime (owes $13,000 to date)? Does it dismiss the other court orders?

    I feel like he’s getting away with everything while I get punished and I didn’t do anything to put us here. He’s the ones who lied, cheated, abused, manipulated, etc to me and the system is treating me like he did.

    1. Emily Spearman says:

      He is draging this out thinking he would run up my attorney few and I’d back down. I never have backed down to him and I’m not about to start doing it now.

      Also, he’s whacking up with one of his mistresses in another state and I will need to hire an attorney in that state to enforce any of the court orders from the divorce.

      He gets to live his life while I have to walk the line.

  10. Amanda says:

    If I am trying to modify my custody arrangements and my final order says after 9 months of negative pubic hair test I can mediate an agreement. Well $800 later nothing his family has tons of money and won’t budge I am an engineer and he ripped my hair out the day before court so I didn’t show needless to say he said all kinds of false statements about me and is manipulating my 8 year old daughter with his 29 year old live in girlfriend. My past lawyer died of an unexpected heart attack and then my next one after paying $4000 switched practices!! Please tell me what to do!!! Lexington County

  11. emily langley says:

    Please help…complex case and dont know law. Not needing legal advice. Just trying to gain knowledge of the law. Temp order went past the 365. Mediation happened after 365 and my ex;s lawyer didnt file appropriate paperwork to have the case restored. temp order was dismissed aug 29th. the ex’s lawyer is trying to have me agree to a date in near future to “restore the case and enforce the mediation agreement” (which was never signed by a judge) Do i have the right to not agree to a hearing to restore the case??? or am i required to?
    thank you so much

  12. Bv says:

    Husband cheated with prostitutes for 7 out 10years of marriage. Found out. Tried to work it out. Didnt happen. Moved out. Moved on. Now he is trying to take my retirement. He chose prostitutes I chose my 401k. His lawyer is a bully trying to force me to settle. He owns his own business so getting honest financial info is a joke. He lied and cheated while married- continues to do it through divorce. Even got out of his deposition while I had to do mine.
    Now he is stalling and our 365 is coming up soon.

  13. M. Faith Jones says:

    If all else fails – file a Motion to Compel

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