Archive for the ‘Mediation/Alternative Dispute Resolution’ Category

Mediator or messenger

During the past few weeks two attorneys I greatly respect have conducted mediations for my clients. One mediator settled every single case, often in circumstances in which I thought reaching settlement would be difficult. The other attorney failed to obtain a settlement in a case that frankly should have settled without much difficulty. This had […]

Getting arbitration awards turned into court orders (or preventing it from happening)

Many of my colleagues are turning to arbitration to resolve family law disputes. Few seem aware that an arbitrator’s award does not automatically become a valid court order. South Carolina’s Uniform Arbitration Act, Title 15, Chapter 48, sets forth procedures to challenge or obtain court approval of an arbitration award. S.C. Code §15-48-120 addresses “Confirmation […]

Not all cases need to settle

A few weeks ago one of my cases was mediated by a retired family court judge. It began with the her talking privately to me and the other attorney. In the previous months opposing counsel and I had tried two cases to verdict. I mentioned that to our mediator, who replied that she thought, “more […]

An aggressive mediator is a hammer but not every case is a nail

The model of mediation we were all taught in the family court mediation training has the parties sitting together with the mediator in one room, while the mediator, tapping into the parties’ latent empathy skills and powers of rationality, kindly guides the participants into a mutually satisfying agreement. At the end everyone sings Kumbaya (just […]

South Carolina Supreme Court promulgates new rule for appointing mediators in family court

An August 27, 2014 South Carolina Supreme Court order requires dismissal of family court actions if they are not resolved or set for trial within 365 days of filing. A March 14, 2013 Supreme Court order made most local counties subject to mandatory mediation before family court cases will be set for a contested trial. Together, […]

The drawback of preventing non-parties from attending mediations

ADR Rule 5(d) states that “ADR [Alternative Dispute Resolution] conferences are private. Other persons may attend only with the permission of the parties, their attorneys and the mediator.” In family court mediations, parties will often want their non-party family members to attend the mediation. Typically, this will be step-parents [for custody mediations] or parents [for […]

Should one execute a formal agreement at the conclusion of mediation?

A frequent debate among my family law colleagues is whether one should have one’s client execute a formal agreement before concluding mediation if one has reached an agreement-in-principal during mediation. There’s no right answer to this issue–just pros and cons with each position. The benefit of having a formal executed agreement is that it mitigates […]

How mediators and attorneys can make mediation more productive

For attorneys and their clients there’s often much unproductive time during mediation. When the mediator is meeting with the opposing party, the attorney and client are often merely waiting to react to the next offer, and little productive work is being accomplished. Meanwhile, the client is being billed for the attorney’s time. However there are […]

 

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