Category Archives: Arbitration

“Early Neutral Evaluation” For The South Carolina Family Court Bench and Family Court Attorneys In The Wake Of Kosciusko v. Parham

For the South Carolina family court bench and family court bar, the South Carolina Court of Appeals in its published opinion in the case of Kosciusko v. Parham, S.C.Ct.App., Opinion No. 5690, filed November 6, 2019, (1) immediately compelled the cancellation of every scheduled binding arbitration where the issues for resolution were “child-related” [e.g., the school to be attended by the child; or the extracurricular activities in which a child could participate; etc.]; (2) immediately sent the family law attorney rushing to pull a file where a client’s court-approved settlement agreement had included a provision “compelling binding arbitration” in the event of the parents’ impasse on any child-related issue; (3) gave immediate pause to any sitting family court judge who, at some point during the trial of a case and while on the record, might have announced to the party-litigants that “I need to hear from the guardian ad litem who I consider to be the eyes and ears of the court”; and (4) required family law attorneys to determine what ADR “alternatives” now remained available to the attorney in the resolution of complex child-related issues given, perhaps, a client’s limited financial resources to wage seemingly unending litigation between warring parents.

Kosciusko v. Parham concluded by stating the following: “Based on the foregoing, we hold that the family court does not have subject-matter jurisdiction to sanction or approve binding arbitration of children’s issues. …”.

Full stop.

Although there is so much to “unpack” within Kosciusko, I found the following excerpts to be the beating heart of this opinion:

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A Mediation Primer 101

A MEDIATION PRIMER 101

From the “practical” to the “psychological” –
10 guaranteed ways to reduce your client’s mediation fees
and greatly increase the opportunity for a successful mediation

1. If your clients or you have any questions regarding the mediator’s fees and the mediator’s billing/invoicing practices, communicate those questions/concerns with the mediator immediately and before you engage the services of the mediator. It is important for you to realize that the Ethics Advisory Committee of the South Carolina Bar previously issued a modified opinion which stated, in pertinent part, that “…if an attorney hires a mediator, the attorney is responsible for ensuring timely payment. If the court orders a mediator, the attorneys should look to the courts for assistance in determination of how the payment will be rendered”.

2. As soon after the mediation date, time and location have been confirmed, have your administrative assistant send your mediator (by e-mail, scan, fax or mail), the following basic information:

a. The pleadings.
b. Any order which has been entered of record.
c. A completed and accurate financial declaration. It is fine to send the financial declaration which was filed for your initial hearing, unless that version is more than 6 months old (however, if all of the entries on the “old version” remain exactly the same, then advise your mediator of that fact).
d. A brief memorandum of the “relief” your client is interested in seeking at the mediation (mark it as “confidential – for mediator’s review only”).
e. Any written settlement offers which may have been exchanged with the opposing attorney.

3. Realizing how busy you are, if you have scheduled the mediation comparatively well into the future (e.g., a month or longer), please do not wait until the week before the mediation to begin forwarding the requested information. As in any case, if you treat the mediation process as “something to get through without your having to do too much work in preparation”, you’ve actually wasted your client’s money, because the “window of opportunity” for a successful outcome becomes too narrow. Just as you must prepare for a trial, you should at least give your mediator an opportunity to prepare to conduct not just a mediation session, but a successful mediation session.

4. The best mediations (and the ones which most often settle rather quickly) are those where the attorneys and their clients have come to the mediation prepared to make a firm opening settlement offer to the other side (it must be presumed this is an offer which has not already been rejected by the other side…there must be a new component to it).

5. Immediately forward to your clients any e-mails or correspondence sent you by your mediator. It cost your client nothing for you to “forward” an e-mail sent you by your mediator. Although you may not have the time (or wish to take time) to read and digest these transmissions, rest assured that your client is keenly interested in being fully informed about this process, and he or she is relying upon you to provide information and explanation about mediation. Your client does not know the mediator…your client knows you.

6. If you are truly interested in fully settling your client’s case at mediation, then you must emphasize to your clients the opportunity which a mediation (entered into in good faith) will present them. No attorney has ever questioned that a case settled in mediation is ultimately much less expensive to your client than a case which goes to trial. Consequently, and unfortunately, if you minimize to your client the important opportunity which mediation offers, then you should most probably not even bother with mediation.

7. If you know prior to the date of the mediation that your client and/or you are not prepared to settle the entire case, you must professionally and ethically make that position known to the opposing attorney and, of course, to the mediator. Do not begin a mediation session only to inform the mediator that you knew ahead of time you were not prepared to settle certain issues that day. Although, for example, settling 70% of a case at mediation may sound promising, the “unsettled issues” may ultimately undermine the entire mediation process and result in a rescission by a party or parties on even the “settled matters”. [Remember that in family court an agreement reached in mediation is never final until the family court judge (a) approves the agreement, (b) signs an order approving the agreement, and (c) the order is entered in the Clerk’s Office.]

8. During the mediation session you should not openly undermine the mediator’s conduct of the mediation. A mediator is a complete neutral in this process, and has, as his or her objective, a goal of being able to reach a full and final settlement of your case. If in your client’s presence you “challenge” the mediator’s method of conducting the session, you will bring the mediation to an immediate standstill, and impasse. (With that said, if you truly believe the mediator’s impartiality is in question, then request a private conference with the mediator and the opposing attorney only, without the clients present, and then voice your concerns openly and frankly.) You must remember that your client is relying upon you for your advice and guidance, not on the mediator. Consequently, and psychologically, once you plant in your client the perception that the mediator is no longer completely neutral, the chance for a successful mediation is remote, if not impossible.

9. Please do not trivialize a mediation session as being “less important” than the trial of a case inside a family courtroom…and do not trivialize the work of a competent mediator. It is far better – and much less expensive – for your clients and you if you request that your chief administrative family court judge (CAJ) waive mediation in your case, rather than your making only a half-hearted attempt to participate in this process. Where professionalism and professional courtesies are involved, mediators, like attorneys, have long memories.

10. And finally, you are once again urged to consider entering into a blended form of mediation/arbitration, which is gaining acceptance statewide as the ultimate form of a family law dispute resolution. Ethically, however, in agreeing to this form of ADR, your clients and you should be prepared to agree there will be no “confidential mediation” matters which might temper or impact upon the mediator’s role on the “arbitration” side of this process. Nevertheless, if your clients and you are intent on bringing a final resolution to the case, then a blended mediation/arbitration process should provide you with that excellent opportunity.

Developing A Trial or Mediation Strategy By “Deconstruction”

The longer I was able to practice family law in South Carolina, whether as a sole practitioner or as a fulltime mediator, the more convinced I became that it was absolutely essential to “deconstruct” the case I was preparing for trial or mediation.  Stated differently, I found it was critical that I try my case (or mediate it) from “the end back to the beginning”…I found that my chances of a successful outcome were dramatically increased if I tried – or mediated – a case from Z to A.

As a family law attorney, isn’t it a monumental waste of your time to develop a trial strategy without first having a bedrock understanding of, and a laser-like focus on, the outcome you want to achieve?  Do you typically “construct” your case from the ground up by calling your witnesses, introducing your evidence, and conducting your cross-examination as if you’re putting together the pieces of a jigsaw puzzle during your trial, hoping that the pieces all fit together perfectly by the trial’s end and in such a way that you’ve made a compelling case for your trial judge?

The very best family law attorneys who came before me had already prepared their “outcomes” before they ever called their first witness; and it was fascinating to watch these attorneys carefully deconstruct their case, witness-by-witness, exhibit-by-exhibit.  As a basic example of this strategy, and if the client was seeking an award of alimony, this attorney in his or her pretrial preparation would have already prepared the following:

  • the client’s testimony to address the “thirteen alimony factors”, factor-by-factor, in detail;
  • the client’s carefully prepared and accurate financial declaration demonstrating the need for an award of a specific amount of alimony necessary to make up the monthly “shortfall” (the attorney would make sure that any discretionary items in the financial declaration were not only reasonable, but purposely undervalued, making them more easily defensible under cross-examination);
  • a CPA’s review of various alimony amounts to ascertain the “after-tax” values in the event the judge might make the alimony award taxable to the client;
  • the cross-examination of the potential payor spouse, with a careful consideration of calling that spouse as an adverse witness in the event your client is the plaintiff.

Let me emphasize that your “job” as your client’s advocate is to make it easier for your trial judge (1) to understand your case thoroughly, and understand it sooner rather than later, and (2) to very comfortably decide the trial issues in your favor.

In the near future, I’m going to discuss how you (and your mediator) can also use this same “deconstruction strategy” in all of your mediations to significantly increase your opportunities for a successful (and final) resolution of your client’s case.

 

You Decide – The Case for Binding Arbitration in the Family Courts

Take it from someone who never was one – but who has observed many over the past 40+ years – family court trial lawyers in South Carolina comprise the very best trial lawyers in any court, at any level, in this State…period (man, let the conversations begin over that one!).

Think about it for a few minutes. No, seriously, think about it.

On a level of importance, is it more important to be able to successfully seek (and recover) insurance proceeds for someone injured in a car wreck…or to be able to win for a parent the custody (lives, souls, hearts) of their children? How important is it for a family court trial lawyer to anticipate the future financial needs of your client and then successfully provide for those needs? Can you compare trying a “road-closing” or condemnation case with defending a case where one side is attempting to forever terminate a parent’s right to be with his or her children? How does a family court trial lawyer artfully remove (and then later skillfully use) the emotions (anger, bitterness and hurt) in a case where a client’s spouse has committed adultery (for many, the ultimate marital sin)?

….more