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

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.

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