Unlike a guardian ad litem–whose work product and testimony may impact a judge’s decision at trial–the only thing the court will hear from the mediator is that mediation took place, what issues were mediated, and what issues remain unresolved. In this respect the choice of mediator has no bearing on the outcome of the trial.

However, generally, the goal of mediation is to settle the case and avoid trial. In this regard the selection of mediator can have a substantial impact on the terms of settlement and an even greater impact on whether the case settles in mediation.

Sometimes–rarely–the goal is simply to “check off the box.” In private actions in South Carolina family court one needs to mediate for at least three hours before one can obtain a trial date. Some (but very few) cases are not amenable to settling in mediation but mediation still needs to be attempted. For these cases any mediator who’s available and relatively inexpensive is fine.

Then there are the cases that aren’t settling because the other side isn’t analyzing the case properly (or, although hopefully this does not happen often, because one’s own client doesn’t trust one’s advice). A common example of this is someone who brings a custody modification case but lacks substantial evidence to demonstrate a change of circumstances. That case settles because the mediator convinces the Plaintiff that further investment in the case is only likely to increase the Defendant’s fee award or convinces the Defendant to offer some small concession to gain closure. Cases in which personality conflicts between the attorneys hinder settlement negotiations (again, hopefully, something that doesn’t happen often) also fall into this category.

The majority of cases being mediated fall into this category. For mediation to succeed the mediator needs to have credibility with both parties’ attorneys but doesn’t necessarily need to be the best mediator available–although a mediator capable of coming up with creative solutions to unique situations is always beneficial. In Charleston County and the surrounding counties, there are at least twenty family court mediators capable of this task.

Finally, there are the cases in which one or both attorneys are highly skilled and highly experienced. Such attorneys go into mediation knowing the value of their cases and have fixed thoughts on where their clients should compromise on their goals and where their clients should stand firm. These cases are extremely hard to settle in mediation, especially if settlement negotiations reached an impasse prior to mediation. For mediation to result in a settlement one or both parties will need to reconsider their (already relatively firm) positions. That requires a mediator whose judgment the attorneys regard highly enough that they will reconsider their own judgments on the value of the case.

For relatively young and relatively inexperienced attorneys, any mediator who would be acceptable in the former category will work fine here. However, when one reaches a certain level of skill and experience, there are few such mediators. An attorney with decades of experience, who has represented thousands of parties, handled scores of trials, and done a number of appeals, is unlikely to reconsider his or her advice to the client based upon the urging of a mediator with a few years of experience, a few trials, and little or no appellate experience.

There are a select group of family court mediators who have to be booked three months in advance. These are the mediators who might convince me to reconsider what my client’s best offer should be. These are also the mediators I will go to for a second or third round of mediation when previous mediations failed. The reason attorneys are willing to wait those three months–when other mediators are less expensive and readily available–is that these mediators represent the only realistic opportunity to avoid a multi day (week) trial.

Ironically, these are also the mediators whose “settlements,” in my experience, occasionally fall apart after mediation–when, after mediation, one or both parties subsequently come to the conclusion that they compromised too many of their goals to obtain a settlement. There’s a tendency to blame the mediator when these settlements collapse, but I no longer do. Instead, I’ve concluded that the mediator helped the parties reach the one of the few likely possible settlements that potentially outweighed the risks of trial, but that the risk of trial was still smaller than the benefit of settlement. In these circumstances, other mediators would have likely guided us to an impasse rather than a broken settlement.

Mediation is simply another tool in a trial attorney’s toolbox. The choice of tool is dependent upon the circumstances of the case, the experience and skill level of the attorneys involved, and the relative stakes of settling too cheaply versus risking trial. Not every case should settle in mediation. However foregoing any realistic opportunity to settle because one was too cheap or too impatient to select a more trusted mediator is a litigation failure. One should avoid selecting a less experienced or expensive mediator when selecting a more trusted mediator could lead to settlement.

The July 24, 2019 Court of Appeals opinion in May v. May, 428 S.C. 131, 833 S.E.2d 78 (Ct. App. 2019), upheld the family court’s reformation of a court-approved separation agreement based upon the mediator’s scrivener’s error and an alleged mutual mistake. In May, the parties entered a separation agreement drafted by the mediator. In a provision dealing with the marital home, the parties’ agreement read:

The Wife shall refinance or assume the debt on the home to remove the Husband’s name from the indebtedness to Benchmark Mortgage. The Wife shall refinance or assume the debt on the home to remove the Husband’s name from the indebtedness on or before June 7, 2016. The Husband hereby waives and relinquishes any and all interest in the property and the equity therein. The Wife shall be responsible for any and all debts and liabilities associated with this property and shall hold the Husband harmless therefrom.

Should the Wife not refinance or otherwise remove the Husband’s name from the Benchmark Mortgage on or before June 7, 2016, the house shall be placed on the market for sale by June 13, 2016. . . . All net sales proceeds shall be split by the parties on a 50/50 basis.

Husband was represented by counsel at the hearing to approve the agreement; wife was pro se. The family court approved the agreement as drafted. Wife subsequently refinanced the mortgage on the marital home and removed Husband’s name therefrom in the allotted time. However, according to Husband, Husband’s attorney, and the mediator, the parties agreed that if Wife was able to refinance the marital home, she would pay Husband $60,000 as his part of the equity in the home. The separation agreement omitted this provision.

Upon discovering this omission, Husband filed a motion pursuant to Rule 60(a) and (b), SCRCP, to reform the agreement to include the omitted provision, arguing scrivener’s error and mutual mistake. In support of this motion Husband submitted an affidavit from the mediator noting the parties’ intent and noting the mistake in omitting the $60,000 provision from the agreement. The family court did not consider the mediator’s affidavit but found clear and convincing evidence of the mutual mistake. It reformed the agreement to require Wife to pay Husband $60,000 as his share of the equity in the marital home and denied Wife her requested attorney’s fees. Wife appealed.

The Court of Appeals affirmed this reformation and finding of mutual mistake. It allowed consideration of the parties’ intentions in the mediation. In doing so it relied upon the 2018 revision to Rule 8(C)(4), SCADR, which “was revised to specifically address the issue in this case.” That subsection reads “there is no confidentiality attached to information that is disclosed during a mediation: . . .(4) offered for the limited purpose in judicial proceedings of establishing, refuting, approving, voiding, or reforming a settlement agreement reached during a mediation.”

In allowing the family court to consider information about the parties’ intentions to reveal information from the mediation, the Court of Appeals held:

In the instant case, neither Husband’s, nor Husband’s attorney’s, nor the mediator’s affidavits disclosed the substance of the negotiations. Rather, they stated what the parties agreed to as a result of the mediation and that the Agreement as prepared did not contain the agreed-upon terms. The statement of what the parties agreed to at the conclusion of the mediation process, even if it was incorrectly memorialized in the written agreement, is not “information they utilized to reach the settlement,” nor does it reveal documents or material relied upon during or in the course of the mediation. Therefore, Rule 8 as it existed at the time of Husband’s motion did not protect the relevant affidavits. Furthermore, the legislature’s revision to Rule 8 last year makes clear it intended to permit the correction of mediated settlement agreements. Accordingly, the admission of the disputed affidavits was not erroneous.

The Court of Appeals further rejected Wife’s claim that there was no mutual mistake but merely a mistake by Husband:

Wife correctly argues Husband was required to establish a mistake by clear and convincing evidence. The family court indicated it based its finding of mistake on the internal inconsistency in the Agreement—the parties agreed to split the marital home’s equity if sold, but Husband would receive no equity if Wife refinanced the mortgage. This incongruity suggests a mistake. However, in the absence of the affidavits regarding the $60,000 provision, that inconsistency may not rise to the level of clear and convincing evidence. Nevertheless, considering all the information presented to the family court, it is clear the parties agreed to the $60,000 equity payment and it was inadvertently omitted from the Agreement. Wife contends she did not admit to any mistake and therefore a finding of mutual mistake is in error. However, Wife’s affidavit is equivocal and does not deny she consented to the $60,000 equity provision at the time of the drafting of the Agreement.

The Court of Appeals further held that Husband’s negligence in failing to read the agreement he executed did not preclude reformation, citing the case of Jumper v. Queen Mab Lumber Co., 115 S.C. 452, 106 S.E. 473 (1921):

[W]e assert that it would be a monstrous perversion of justice to deny the right of reformation upon the ground that the defendant was negligent in not reading the contract before signing it. It was as much the duty of the plaintiff to read the contract and see that it conformed to the agreement as it was the defendant’s. If the plaintiff read it and discovered the discord and allowed the execution to proceed intending to take advantage of it, he does not assume a position that commends him to a [c]ourt of [e]quity.

[I]f when presented for their signatures [the parties] thought or assumed that no discord existed, their signing would be the result of their co-operative fault; if one of them discovered the discord and remained silent, it would be a fraud upon the other not to call attention to it. In any conceivable event, therefore, reformation would be decreed.

Citations omitted.

Finally the Court of Appeals rejected Wife’s claim that the family court could not consider parol evidence of the parties’ intent, as “the parol evidence rule does not preclude extrinsic evidence in cases involving mistake and reformation.”

While I don’t doubt that, at some point in the mediation, the parties intended that Wife would provide Husband $60,000 if she refinanced the marital home by the deadline, that is not the agreement either party signed and I am not convinced that reformation was the proper remedy for this “mistake.” There is always a gap between the “meeting of the minds” that leads to someone drafting an agreement and the execution of the actual agreement. Sometimes, during that gap, one or both parties changes his or her mind and the agreement never gets executed. At some point in the mediation, Wife agreed to the $60,000 payment but that was not the agreement she signed. It may not have been Husband’s intent to let Wife keep all the equity in the marital home but I’m not sure it was Wife’s clear intent to pay Husband $60,000 for his share of the equity at the time she executed or the court approved this agreement.

Reformation of the agreement was the proper remedy only if Wife rejected the remedy of vacating the entire agreement (or, if equitable distribution wasn’t tied to issues of child support and alimony, vacating the equitable distribution portions of the agreement). The May opinion does not indicate whether Wife was presented, or even requested, this option. It’s an option she should have been allowed.

Most pro se family court litigants are pro se either because they cannot afford attorneys or do not want the contentious litigation that they assume is the natural result of retaining separate attorneys. Often these litigants will use a mediator to help them resolve their disputes. The following suggestions can help such litigants make the best use of the mediator and maximize their chances of resolving their dispute in mediation.

In any family law matter that involves financial issues, the court will require financial disclosure to approve the agreement. In South Carolina, the form our Supreme Court has provided for such disclosure is called a financial declaration. If I am conducting a mediation that involves financial issues, I will not proceed until the parties have filled out, executed (signed and had notarized), and exchanged this document. If child support is at issue, the information regarding gross income, the children’s health insurance and day care expenses, and prior support obligations will be vital. If alimony is at issue, information about the parties’ assets, income, and expenses will be important. One cannot properly consider equitable distribution of marital assets and debts if these assets and debts are not listed on the financial declaration.

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In cases in which equitable distribution is at issue, it is useful for the parties to come up with an equitable distribution spreadsheet (this link provides a sample spreadsheet). This spreadsheet should list all the assets and debts the parties believe are subject to equitable distribution in the first column and the valuation in the second column. In the third column whatever assets the first spouse will be keeping should be given a value equal to the value in the second column (the formula is +bx where x is the row number) and whatever assets the other spouse will be keeping should be given a value of $0.00. The fourth column is the value of the assets the other spouse will be keeping and the formula is the value of the second column minus the value of the third column (+bx-cx). Finally one should total the values for columns two through four.

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In mediation whether these items should be considered marital, the value for these items, and who will keep which items can all be discussed. However having this spreadsheet prepared prior to mediation will greatly expedite the process.

Finally, prior to mediation, the parties should discuss relevant issues, such as custody, support, and property division, determine where they have agreement, and determine what their disputes are on the issues where they don’t agree. I have outlines of typical issues in marital dissolution cases and a separate outline for potential child custody restraints (many of which I do not encourage in my own practice). Folks should review these outlines and discuss issue relevant to their dispute prior to the mediation.

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Doing the tasks suggested above will make any mediation proceed more efficiently and effectively. I do these tasks in my own cases prior to mediation. In pro se mediations the consequences of not reaching settlement are much greater–making it even more vital that they do these tasks prior to mediation.

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 me thinking about what the first attorney did well and what the second attorney did that created (what I perceived as) a failed mediation.

While touchy-feely types treat mediation as a process in which two people in conflict achieve harmony through understanding, us more pragmatic folks see mediation as a litigant’s best chance to reach an acceptable resolution of a dispute while retaining significant control over that resolution. This is because mediation is an alternative to letting a factfinder–in the South Carolina family court system, a judge–decide the dispute. In every mediator’s mind (and in the minds of the attorneys who represent parties in a mediation) the thought must be, “what are the likely range of outcomes on each disputed issue?” This does not mean that the resolution of each issue should be within that range. One of the benefits of mediation is that a party can achieve a result better than what he or she might achieve in court on an issue of particular importance to that party. However, for this to happen, that party most likely will have to accept a lesser result than what he or she might achieve in court on an issue of particular importance to the opposing party.

“What will a judge likely do?” is the question that should drive the mediation process. This means that a good mediator is helping litigants understand how their proposals comport with likely trial results. The best proposals–the ones most likely to achieve settlement–are ones in which the mediator can justifiably tell the other side that there is a significant risk of getting a worse result–overall, not necessarily on each individual issue–at trial.

A good mediator will let a party make one-and-only-one initial unrealistic proposal. In fact, it’s good practice to allow a party to do so. First, there’s always the unlikely possibility that the proposal will be accepted or only minimally countered. Second, the response to this proposal will allow that party to see if some unrealistic goals (in the sense that these goals cannot likely be obtained from a judge) are acceptable to the other side and what benefits the other side will want in return. Finally, in allowing the party to make an unrealistic offer, the mediator allows that party to be “heard.” Any rejection of the unrealistic proposal will now be the doing of the other party, and not a mere dismissal by the mediator.

However, after the first round of unrealistic proposals, a good mediator will test all subsequent proposals against what a judge might realistically do at trial. This doesn’t mean that the proposal needs to be in line with everything a judge might do. For example, many divorce cases that would almost certainly result in a permanent periodic alimony award at trial settle with a different result. However, in all such cases, the party getting out of paying permanent periodic alimony is offering something of value that the other side could not get at trial–typically a super-majority of the marital assets and/or a greater monthly amount of lump sum alimony–in order to get out of paying permanent alimony. A second-round proposal in an obvious permanent periodic alimony case that neither offers permanent periodic alimony or something valuable (in the sense that the other party could not get that result from a judge) in return for the waiver of permanent periodic alimony is an unrealistic proposal–and frankly insulting to the other side and the other side’s attorney, as only an incompetent attorney would counsel a client to accept such a proposal.

A good mediator takes control of the mediation by requiring the parties to justify the proposals they make. The most obvious question for a litigant to ask a mediator is “what’s my risk in rejecting this proposal?” In every circumstance the answer will include the stress and expense of further litigation. However, if that’s the complete answer, only the most resource-poor or anxious litigants will accept that proposal. Thus, when fashioning a proposal, the mediator should be asking the party making the proposal what risks there are for the opposing party in rejecting the proposal. If the proposing party cannot give a realistic answer, the mediator should probably not be forwarding that proposal.

In contrast, a mediator who allows such second- (or subsequent) round proposals to be made without asking the party who makes that proposal to articulate why the other party would be at risk to reject it, stops being a mediator and becomes a mere messenger. In the unsuccessful mediation above, the mediator kept providing us proposals in which (I believed) my client was extremely unlikely to do worse at trial. The mediator could not articulate any reason my client should accept these proposals other than that judges sometimes do unexpected things. It was seven hours into the mediation before the mediator delivered a proposal that was within the range of likely possible outcomes at trial–and, even then, I suspected my client would do better on a few issues without doing worse on any. By that point in the mediation I had already fashioned a proposal–which had been emailed to opposing counsel–that (I believe) put the opposing party at significant risk of rejecting. There was no reason to respond to the other side’s first reasonable proposal when I had already made a proposal that my client could fully justify at trial.

By failing to require the other side to justify their proposals, and by being unable to articulate reasons my client should accept them, the mediator essentially turned herself into a mere messenger. My clients do not need to be paying my hourly rate, and half the mediator’s hourly rate, to have proposals run back-and-forth.

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 cases need to go trial.” She indicated that, since becoming a mediator, she had settled numerous cases in which she thought one party would have been better off proceeding to trial.

While I find her observation accurate, I found her statement surprising. When I first started practicing family law 23 years ago, few cases were mediated–although most cased settled through negotiation. Even before mediation became mandatory a few years ago most cases were mediated and most of those cases settled in mediation. Now that South Carolina’s family court is “mandatory mediation” most attorneys have fewer trials and less experienced attorneys may have limited opportunities to try complex divorce or custody cases.

Yet the ability and willingness to try cases are required skills to be an effective advocate. Mediators will often scare litigants into settling by mentioning the expense and risk of trial. While both are legitimate concerns, neither is a reason to forgo important and achievable goals. Further these argument cut both ways–the opposing party also has the risk and expense of litigation if the matter doesn’t settle.

There are some cases that absolutely should settle unless one side is literally crazy. Going to trial over custody of a well adjusted seventeen year old or fighting over a $50.00 per month child support dispute for a sixteen year old are situations in which resolution by coin flip would be more cost effective.

But some cases simply need to be tried. When two good parents live geographically distant from the other and both seek custody, compromise isn’t really possible. When one parent, for good reason, seeks termination of the other parent’s parental rights, the second parent has little reason to give in and the first parent must proceed to trial to protect the child. Where there are substantial disputes on support or property division issues, trial is often preferable to settling on highly unfavorable terms.

Including contempt actions, I probably try five to ten cases a year that last one day or longer. In the past few years I’ve won many and lost a few. Yet every single case I tried needed to be tried, as a judge’s decision was the only method of getting one or both parties to accept reason. Even in the few I’ve lost, my clients have generally been happier to have tried the case than settled or withdrawn the case. Having one’s “day in court,” and having a wise and neutral decision maker consider one’s concerns, has value. These clients appreciated that. Sometimes, with those cases I’ve lost, the parties were able to find a way to move forward and reduce or resolve that areas of tension that had necessitated the trial.

While mediation is a very useful method of dispute resolution, and frequently leads to just resolutions, not every case needs to settle. Few folks should be more invested in settling cases than a retired family court judge turned mediator. Yet she is telling us that many cases settle in mediation that shouldn’t have settled. One should heed her advice.

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 kidding about the last part).

Beginning mediators who have never participated in an actual mediation will use this model in their initial mediations, only to find them develop into angry, unproductive arguments. If I ever have the opportunity to mediate a family law matter involving two fully enlightened human beings, I might employ this model again. Given the unlikelihood of even encountering even one fully enlightened human being, and the exponentially greater unlikelihood of encountering two such humans who just happen to have a family law dispute that they themselves cannot resolve, I’m not optimistic.

So almost all family court mediation involves placing the parties in separate rooms and, through some mix of gentle persuasion and increasing aggressive arm twisting, getting them to reach a resolution that leaves neither party completely miserable. Almost every mediator starts with the balance towards persuasion–after all, it is nice if the parties leave the mediation happy–but at some point the mediator needs to employ arm twisting: if the folks attending mediation could resolve their disputes through simple persuasion they probably wouldn’t need mediation.

Mediators offer differing levels of experience, legal knowledge, and judgment. However where mediators typically differ as mediators is the balance they employ between persuasion and arm twisting, and how far they are willing to arm twist to reach a settlement rather than declare an impasse. A mediator who refuses to engage in any arm twisting will have a low rate of settlement. Hammer both parties with their worst case scenarios, and place great emphasis on the litigation expenses necessary to go to trial, and a mediator can get all but the most obstinate or unrealistic parties to settle.

The gentle mediator will rarely have these settlements fall apart between the mediation and the final hearing to approve the settlement. Further the parties who reach such settlements without much force being applied will likely be happy with the resulting agreement later on. However such mediators will not settle a substantial percentage of the cases they mediate and attorneys may be reluctant to use them–especially attorneys who don’t like trying cases.

In contrast, an aggressive mediator will have a high rate of settlement–and attorneys who don’t like trying cases love such mediators. A big problem with an extremely aggressive approach is that some cases will settle not because both parties compromise but merely because one party simply gives up. That some percentage of these agreements are repudiated between the mediation and the final hearing may not be something these mediators are even aware of. When these settlements fall apart, the attorneys for the parties are more likely to blame the party backing away from the agreement as being “unreasonable” than blame the mediator for pushing one party too hard.

The aggressive approach can also save time and money because the mediator is pushing parties to give up on goals rather then exploring options that might leave both parties slightly better off. A party demanding every Thanksgiving with the children can be told that no family court judge is going to award that, so move on. However a gentle mediator will take time to explore why that parent wants every Thanksgiving and whether that parent is willing to offer the other parent something valuable in return. Through this process, one can help the parties reach agreements better tailored to their unique circumstances–but again such a process takes time and adds to the mediation costs.

Every mediator should probably have a personal philosophy of when and how hard to engage in arm twisting to reach a settlement. Attorneys selecting mediators should consider both parties and determine what approach might work best. There are times an aggressive mediator may help an unrealistic party be reasonable, whereas a more gentle approach will fail to generate any concessions. There are also times an attorney has a client who cannot withstand the rigors of trial so that attorney needs a mediator who will absolutely settle the case. Other times a gentler approach may help a party move to a reasonable position in a manner that won’t generate buyer’s remorse and cause the agreement to be repudiated before it’s approved.

It’s a sad commentary on our family court bar that the most aggressive arm twisters are the most sought after mediators. I think it’s better to try a case than have a client reach a settlement that leaves him or her unhappy, especially if there’s a reasonable chance that client might get a better result at trial. Experience shows that so long as the mediator isn’t completely passive in the face of one or both parties’ resistance, a gentle mediator can often resolve some issues and narrow other issues in a manner that leaves both parties reasonably content. There’s a use for arm twisting mediators, but not for every case.

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, these two rules caused problems in cases in which one side–often a pro se litigant–refused to mediate. The other party would need to file, and attend, a motion to appoint a mediator. This would add unnecessary cost to the case and could delay getting mediation scheduled by a month or two. Sometimes this would be sufficient delay to have the case subject to dismissal.

An April 29, 2015 Supreme Court order authorizes an amendment to South Carolina Alternative Dispute Resolution [ADR] Rule 4(d)(2). That amendment states, “either party may request the appointment of a mediator at any time by submitting a Request for Appointment of Mediator Form to the Clerk of Court. Upon receipt of a Request for Appointment of Mediator Form, the Clerk of Court shall appoint a primary mediator and a secondary mediator…”

On May 5, 2015 the Supreme Court promulgated a new form, SCADR109, available here, to implement this rule change.  One no longer needs to file a motion to get a mediator appointed.  This should reduce delay and expense when one party refuses to mediate.

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 divorce mediations] or either/both [for support modification mediations].

ADR Rule 5 clearly allows the other party the ability to prevent these third parties from attending the mediation. Often they will chose to do so. Typically this is because the other party does not get along with that party’s new spouse or [ex] in-laws. The refusal can be utilized as a method of exercising control over the other party.

However, what is personally satisfying is almost always counterproductive. No matter how disruptive such third parties can be to the settlement process, anyone who has “veto power” over an agreement is better off being part of the mediation process. To prevent such veto-holding non-parties from attending the mediation can, at best, lengthen the mediation, and can, at worst, cause a mediated agreement to fall apart before the court approves it.

In any mediation that results in an agreement both parties are almost certainly going to be giving up on goals that they had hoped to achieve. In fact, part of the mediator’s role is to help parties determine which goals they might give up in order that they can be certain of obtaining other goals. The mediator “sells” the parties on the idea that achieving the goals gained through a mediated agreement is better than going through the stress, expense, and uncertainty of letting a family court judge decide these issues. The mediator also helps these parties understand why giving up on certain goals is in their best interests. Ultimately the mediator needs both parties to accept that the balance of what they achieve and what they give up is preferable to the risk of trial.

However the folks who are unable to participate in the mediation won’t necessarily understand this balancing. Instead they will review the mediated agreement through the lens of what was given-up, as opposed to what was gained. They are likely to discourage the litigant from going through with the agreement. In the best case scenario, the party will be continuously phoning the “veto holding” relative during the mediation to get the non-party’s input at each step of the negotiation. This will lengthen the mediation process without providing any real benefit. In the worst case scenario, the non-party will talk the party out of executing the mediated agreement or talk that party into repudiating the agreement if it has already been executed.

Though the desire to keep non-parties out of the mediation process is understandable–especially when the other party dislikes the non-party–anyone who will ultimately have veto power over an agreement should participate in the mediation. Mediated agreements are most likely to result in a final resolution of the case if all veto-holding relatives buy-in to the mediator’s suggestions.

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

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