Category Archives: Mediation

South Carolina Supreme Court’s New Revisions To Rule 8 (Confidentiality) Of The South Carolina Alternative Dispute Resolution Rules

On or immediately after May 1, 2018, the South Carolina General Assembly will most probably have approved the South Carolina Supreme Court’s Order of January 31, 2018, making substantive and impactful revisions to Rule 8 of the South Carolina Alternative Dispute Resolution Rules (SCADR); and I believe, at least from my perspective, that the South Carolina family court practitioners should be aware that there may be certain “unintended consequences” resulting from these Rule 8 revisions.

SCADR Rule 8 is, and has been from its inception, the Rule governing the confidentiality of the mediation process.  Currently, Rule 8 begins by stating that “(C)ommunications during a mediation settlement conference shall be confidential”; and then the Rule moves forward from there.

The genesis for the “revised Rule 8” most probably came from the fairly recent case of Huck v. Avtex Commercial Properties, Op. No. 5500 (S.C. Ct.App. refiled on March 28, 2018), where one of the appellate issues focused on the appellant’s effort to disclose and introduce at trial a purported agreement which had been reached by the parties during their mediation; and in addressing that particular issue, the South Carolina Court of Appeals stated the following, in pertinent part:

“We find the trial court erred in denying Avtex’s motion to disclose settlement.  The documents referred to in Rule 8 are designed to protect any documents prepared for use by the mediator and the parties to the mediation itself.  Once the parties reach a settlement, documents prepared in conjunction with the settlement and release are not for the purpose of, or in the course of, mediation.  Rather, they are documents prepared in connection with the litigation and to bring the litigation to a close.  Rule 8 is designed to protect the communications made during the mediation itself and to protect the process.  The parties’ mediation agreement reinforces the rule and simply incorporates the same language.  The request for production of the settlement documents does not disclose confidential information from the mediation (i.e., it does not disclose or discuss information the parties utilized to reach the settlement).  Further, any confidential matters the parties do not want disclosed can be protected through court proceedings including confidential provisions.” (Emphasis added)

Our Supreme Court’s ordered revisions to SCADR Rule 8 are intended to offer more clarity (1) as to parameters of “confidentiality” during the “course of the mediation proceeding”, and (2) as to what can, will – or might – fall outside these “confidentiality parameters”.  And so with that stated, I would like to try and breakdown, section-by-section, the revisions to Rule 8 which will now govern the mediation process beginning around May 1, 2018, and I have tried to emphasize in bold lettering the “new revisions” from the current SCADR Rule 8, and then provide some brief “comments” regarding each of these revisions:

Continue reading →

How Do You Successfully Mediate Feelings – And Why Is “Validation” So Critical (And So Frequently Overlooked And Misunderstood By The Mediator)?

[Note to the reader: In 2010 I wrote much of what I’ve put into this particular post below, with the rather odd exception of my having failed to include “validation” as one of those “feelings” I was so often encountering as a family court mediator (and, most recently, as an early neutral evaluator).  However, over the years it has most often been validation which I have allowed to elude me, and which has created a significant hurdle in helping the parties reach a successful resolution of their litigation.  And so I thought it might be timely to revisit this particular subject, just to see if (and how) I had allowed my family court mediation practice to morph into its most current form.  Let me quickly add that for the many of us who have attended “mediation school” while becoming a certified family court mediator, our instructors use the word and the term, “validation”, within the first 2 hours of an intensive 40-hour course.  So let’s just start there.]

“Validation” is defined as “the recognition or affirmation that a person or their feelings or opinions are valid or worthwhile”.  And …

“Mediation is the art of recovery.” (From “Family Court Mediation Training Program”)

Having practiced family law for over 44 years, I am well now into my 9th year as a fulltime family court mediator and an early neutral evaluator, and I have determined that, on many levels, alternative dispute resolution (either as a mediator or an early neutral evaluator) has presented me with my greatest professional challenge…and here’s why:

I retired from the South Carolina family court bench at the end of December, 2008, and in January, 2009, I “transitioned” into my mediation practice, convinced that I had enough experience in this area immediately to become a natural-born mediator.  I just knew I could settle every case by sheer force of will and experience.  Wrong…and big mistake.

Continue reading →

Early Neutral Evaluation In The South Carolina Family Courts – Finding A New (Better) ADR Way Forward

I very recently had the privilege of successfully joining with two of my great friends (and former colleagues on the South Carolina family court bench), Joseph W. McGowan, III, and Robert E. Guess, in a joint venture – “Early Neutral Evaluation Services”, and we formally launched our professional business model on January 1, 2018.

However, before I provided you, the reader, with the specifics about our particular business model (we are using a “team concept” approach), I wanted to spend some time reminding all of us family law attorneys that for almost 6 years now – since April 30, 2012 – “early neutral evaluation” (ENE) has been “hiding among the South Carolina Alternative Dispute Resolution Rules“, and that once we are able to “deconstruct” (so as to better understand) these ENE rules and target the family court issues the ENE rules are/were intended to resolve, then my two colleagues and I remain absolutely convinced that, within the next 5 years, “early neutral evaluation” in the South Carolina family courts will be THE first choice of dispute resolution utilized by our State’s family court bench and bar.  Period.

In researching the history of “early neutral evaluation” in my own efforts to better understand (a) what it was, and (b) how we could utilize it, if at all, in the South Carolina Family Court system, I came across an excellent article in FindLaw For Legal Professionals, entitled “Neutral Evaluation: An ADR Technique Whose Time Has Come”.  I found this article hugely helpful to me and enlightening, and I wanted to share just a few of its excerpts (there were more than a “few”, and I would urge that you please read the entire article if you have the time).  Here they are (and I’ve taken some slight editorial license on the emphasis):

“Any dispute resolution process by definition brings a certain amount of ‘baggage’ to the table, generated by its very structure and purpose.  This structural ‘baggage’, like everything else in life, always has a plus and minus to it.  For example, the primary structural baggage which litigation and the trial bring to the table is the requirement that there be a winner and a loser. …

The baggage which arbitration brings to the table is similar: arbitration is an adjudicative process, where the win/lose hammer can be even more final than in classic litigation, and thus where the stakes can lead to nearly as much desperation, expense and insane results as a trial (it just happens a little bit more quickly, and you can drink coffee and eat donuts in the comfort of some attorney’s office while it happens to you). …

The baggage which mediation brings to the table is primarily emotional: mediation is avowedly a settlement process, where the parties have already, just by agreeing to engage in it, let down their guard a little bit as far as their ‘toughness’ about the ‘invincibility’ of their positions.  This aspect of mediation, i.e., the fact that by its very structure it requires the participants to acknowledge that they are there to settle the case, often presents such a psychological barrier that the technique never gets used until the parties are forced to use it …

Neutral evaluation, on the other hand, carries with it neither the settlement baggage of mediation, nor the adjudicative baggage of (trial and binding) arbitration.”

Continue reading →

Federal Preemption And The Acronyms For Federal Retirement Plans (a/k/a The “Mysterious Alphabet” Of The Family Court)

If you have the time (or if you are able to take the time) to read through the materials below, then you’ll quickly find that you’ve entered the very murky waters of an area of the practice of family law that often sends chills up and down the spines of family court attorneys – federal preemption and federally-connected retirement or survivor plans [think “QDROs” or “COAPs”].  I’ve simply tried to give you a “taste” of some case law which might cause you to dig a little deeper into the preparation of your clients’ marital settlement agreements or your own trial preparation if your clients’ futures (and certainly your clients’ marital assets) are affected or impacted by these areas.  Good luck out there.

I.  FEDERAL PREEMPTION:

Fisher v. Fisher, 319 S.C. 500, 462 S.E.2d 303 (Ct.App.1995): “Federal preemption did not preclude application of state equitable distribution laws where Congress had not explicitly excluded (military) early separation incentive pay from state apportionment laws.”

  • Social Security benefits

 Simmons v. Simmons, 370 S.C. 109, 634 S.E.2d 1 (Ct.App.2005):  “Although we are sympathetic to Wife’s claim, Social Security benefits simply cannot be divided in an equitable distribution award.  Because Congress preempted the Social Security arena, state courts do not have subject-matter jurisdiction to mandate distribution of such benefits whether by agreement or otherwise.”

  • Military Survivor Benefit Plan annuity

 Silva v. Silva, 333 S.C. 387, 509 S.E.2d 483 (Ct.App.1998):  “Major Silva (husband) and Brigitte (first wife) married in 1972 and divorced in 1985.  In a settlement agreement merged into the divorce decree, husband agreed to designate Brigitte as the beneficiary of his military Survivor Benefit Plan.  The decree provided further that the husband would complete all necessary paperwork and provide documentation that he had done so.  Although sometime during their marriage husband had named Brigitte as his spouse beneficiary, he failed to comply with the court’s order and execute the necessary forms to ensure that Brigitte, as a former spouse, would receive the benefits.

 In 1987 husband married Wendy (second wife).  In December 1992 husband died.  Because husband failed to complete the paper work that would allow Brigitte as his former spouse to collect the SBP annuity, Wendy, as husband’s widow, began receiving the annuity pursuant to the default provisions of the SBP.

 In 1994 Brigitte filed suit in circuit court seeking to (1) impose a constructive trust over the SBP payments being received by Wendy, (2) order an accounting of all SBP proceeds, and (3) disgorge all payments already received by Wendy.  At trial, Brigitte’s attorney conceded that husband assumed that Brigitte would receive the benefits because Brigitte was still named as the spouse beneficiary.  The attorney also stated Brigitte was not alleging husband was guilty of fraud, deceit, or malice by his inaction.  The trial court refused the requested relief.

 “The SBP (military Survivor Benefit Plan) was created by Congress in 1972.  The system was designed to provide an annuity payable to a retired service member’s surviving spouse or child upon the service member’s death. … A 1982 amendment expanded SBP coverage, allowing a service member the right to designate a former spouse as the beneficiary. … The following year Congress clarified the 1982 amendment and provided a retired participant the right to name a former spouse as the beneficiary if at the time of retirement the service member had designated the spouse as the beneficiary and the couple subsequently divorced.  To do so, however, the service member was required to notify the appropriate government official in writing within one year     following the date of the decree of divorce, dissolution or annulment.

 …A former spouse is allowed only one year from the date of the court order or filing to do so (write the appropriate government official upon the failure or refusal of the service member to have sent this written request).  Congress has further provided that the SBP annuity ‘is not assignable or subject to execution, levy, attachment, garnishment or other legal process.’

…We find the reasoning of the Georgia court persuasive and conclude that the provisions of the SBP make clear Congress’s intention to occupy the field under these particular circumstances.”

  • Employment Retirement Income Security Act (ERISA)

 Walsh v. Woods, 371 S.C. 319, 638 S.E.2d 85 (Ct.App.2006):  “Any and all State laws insofar as they relate to employee benefits plans are preempted by ERISA.  This Court has recognized that the preemptive effect of ERISA is a broad one.

 …While ERISA related claims involve subject-matter jurisdiction, 29 U.S.C.§1132(3)(1) vests both state and federal courts with concurrent subject-matter jurisdiction of certain civil actions brought by the participants or beneficiaries against an employee benefit plan.  Nevertheless, under preemption principles, federal ERISA law must control our decision on the issue of Wife II’s claim to the SSB (surviving spouse benefits).

(Factual note:  In the present case, at the time husband retired in 1989, the SSB vested in Wife I because the two were still married.  Although husband had a ninety-day  window prior to his retirement in which he could have, with Wife I’s written consent, removed her as a beneficiary of the SSB, this was not accomplished.  After husband retired, even if Wife I had agreed to waive her SSB, she could not do so under ERISA.  Wife I’s purported waiver in the divorce agreement was ineffective to waive the SSB because ERISA does not allow a beneficiary to waive SSB after a plan participant retires.  …  ERISA provides SSB may not be paid to a spouse who marries a participant after the participant’s retirement.”]

 …It does seem untoward that husband should not be able to have a component of his qualified joint and survivor annuity awarded to Wife II, rather than a woman from whom he has was divorced and did not have a relationship with for years before his death.  However, in keeping with our reading of federal law, there is no other resolution possible.”

Continue reading →

Your Client’s Financial Declaration – The Most Important (And Often The Most Poorly Prepared) Document In Family Court Litigation

If you’ve practiced family law in South Carolina for any length of time and attended mandatory CLEs where one of the presenters was a South Carolina Court of Appeals judge, how many times have you heard that judge state (1) if the issue is related to equitable apportionment of the marital estate, then the family court judge’s order is required to have addressed in some form all of the “15 equitable apportionment factors” – or – (2) if the issue is related to alimony, then the family court judge’s order is required to have addressed in some form all of the “13 statutory alimony factors”?

And if you are the “prevailing attorney” and have been requested by your trial judge to prepare the proposed order, how would you explain to your client why the trial judge’s appealed order was “remanded” by an appellate court for (your?) failure to have expressly addressed these various, point-by-point “factors” in the order?

While remanding a case back to the family court can be costly to your client (if you’re continuing to charge a fee for this “scenario” which you may have created) and certainly time-consuming, a failure to have prepared and presented to your trial judge a client’s financial declaration which is accurate, truthful to the best knowledge of the client, thorough and thoroughly prepared (with annotations and footnotes, if necessary, or having an attached, detailed “marital assets addendum”) is a fatal error by the attorney, which can (and most often will) have a substantial effect on the financial issues decided by your trial judge.

And yet the financial declaration remains one of the most poorly prepared documents covering the entire spectrum of family court litigation.

Continue reading →

The (Unintended) Consequences Of Mandatory Mediation In The Family Courts – Part 2 [The Attorneys’ Side – There Is A Difference Between ‘Wanting To’ And ‘Needing To’]

Let me say this up front: I candidly admit that I’m the embodiment of the “professional oxymoron” (most of my colleagues would prefer to just ignore the “oxy” part).  On the one hand I am, and have been for many years, very cynical regarding all things family court (i.e., you cannot be given a 15-minute block of time within which to decide the fate and immediate futures of spouses, parents, and children,  based on a maximum 8-page affidavit that is most always “borderline perjury”) … while on the other hand I remain the eternal optimist (the Pollyanna) who wants to believe that all party-litigants, when given the choice between doing the right thing by making meaningful compromises in order to achieve total control over their joint or collective futures [“Plan A”] versus these same parties placing these decisions (which will affect their lives and the lives of their children) into the hands of perfect strangers [“Plan B”], would choose “Plan A” 100% of the time.

And the eternal optimist in me would be wrong at least 50% of the time.

Having now been swimming in the mediators’ pool for approaching 7 years, I’m convinced there are unintended consequences resulting from the mandatory part of mediation in family court litigation in South Carolina.

I’ll try to explain if you’re interested in reading on.

Continue reading →

The (Unintended) Consequences Of Mandatory Mediation In The Family Courts – Part 1 [The Judges’ Side -Trying To “Outrun The Numbers” And The 365-Day Benchmark Rule]

For a number of years now, but most significantly from around 2004 to the present, the family court system in this State became a seemingly never-ending process of trying to “outrun the numbers”; that is, the now 58 active family court judges were (and continue to be) each tasked with hearing and deciding approximately 3,000+ cases per year, which included, but were not necessarily limited to, motion hearings, contempt hearings, juvenile hearings, DSS hearings, child support hearings, domestic abuse hearings, pro se filings, bench warrants, and contested final hearings…and that was just a judge’s standard “in-court” work, and not his/her “in camera” requirements.

With the implementation of the revised August 27, 2014 “365-day Benchmark Rule” it was the obvious intent of that South Carolina Supreme Court order to force litigants and attorneys (the “attorneys’ side”), not necessarily to have completed the litigation within a 365-day period of its commencement (i.e., filing) date but, to have requested a final hearing within 365 days of the commencement date.  However, the flip side of that “benchmark” (the “judges’ side”) was clearly intended to give another “arrow in the quiver” – albeit a draconian one – to the chief administrative family court judges in controlling/reducing the number of pending cases by providing for the absolute dismissal of any case which failed to comply with the 365-day timeline requirements imposed by this benchmark order.

Provided you not tell anyone, I’ll let you in on a secret:

Continue reading →

The Three Horsemen Of The Family Court – Animosity, Mistrust and Control

If you practice family law in South Carolina, then you’ve been introduced to these three specters seated between your client and you inside a family courtroom or at the mediator’s table. They are your three worst enemies in a courtroom or at your clients’ mediation, and you’ll never beat them…unless, that is, you’re clever enough and insightful enough to realize you were the one who invited them to this party…or you did nothing to prevent their attending.

They will stand in the way of your conversations with your clients. They will prevent all manner of rational and reasonable settlement discussions. Like a poltergeist, they will whisper controversy in your client’s ear and interfere with the presentation of your case. They will cause you to be second-guessed by everyone inside the courtroom – the judge, the other attorney(s), your own client. You will become victimized by them, vilified by them, cursed by them. You may even lose sleep over them and, perhaps worse, you will certainly lose money (not make money) because of them.

And this will happen in every divorce case you accept and in every divorce case you will mediate or litigate.

Let me introduce you to The Three Horsemen of The Family Court.

Seated to your right is Animosity – Horseman Number One. I’m sure the two of you have met…many times. Animosity drove your client to your office. It introduced your client to you, and, in fact, during your initial interview, Animosity was the voice of your client. Animosity answered all of your questions, and when, in responding to your client’s/Animosity’s questions, you said all the right things (necessary to fuel that emotion), Animosity convinced your client to pay you a retainer fee. It didn’t matter to you at the time whether you would be clever enough in the end to protect your client’s financial future and his/her interest in obtaining child-related relief.

The problem is this: Animosity doesn’t give a damn about those things. Continue reading →

The Imperfection Of The Family Court

I recently mediated a very difficult case in which the primary issues centered on the parties’ relationship with one another and the impact of that relationship on their very young children. As most often occurs in these always stressful mediations, the back-and-forth meetings and discussions with these parents resulted in often grudging concessions and inch-by-inch forward progress.

Finally, in trying to settle a visitation date, time and location exchange, we hit the “proverbial wall”, at which time one the parties’ attorneys (both parties’ attorneys in this case were excellent, and in that regard, their clients were fortunate) could no longer restrain himself as he continued to argue to me that the other parent’s position was “not logical…there is no logic in their position!”. I listened patiently and when the attorney was finished, I asked him this question:

Can you tell me when “logic” was ever involved in a family court case?

As I have repeated many times over the years, and certainly many times during my family law mediation practice, every case inside a family courtroom is driven by emotions – animosity, mistrust and issues of control run rampant during mediation sessions and certainly outside and inside the courtroom. I’m referring, of course, not just to the litigants, but also to their attorneys. Consequently, I have yet to encounter a single mediation conference where “logic” had anything to do with the settlement or impasse reached in the case.

To the family law attorney: please do your clients a tremendous favor and tell them that the family courtroom is the most imperfect place for decision-making on the planet.  And let me add the following to the mix:

Continue reading →

“Scenarios” To (Almost) Insure You Will Need To Insure That Your Professional Liability Policy Is Current (Read At Your Own Peril) – Scenario No. 1

On October 30, 2008, I made an ethics presentation to our Anderson, South Carolina Inn of Court during which I presented 18 different “scenarios” of varying fact patterns regarding real-world issues encountered in family court litigation.  What remains fascinating to me, however, is that in the 6+ years following that presentation, I still continue to see (and to encounter in my mediations) those identical problems and pitfalls.  So I thought it might be interesting to share these “scenarios” with a wider range of family law attorneys to see whether and how you address them in your family law practices.  At the very least, I hope that some of you will find this informative (and maybe, at times, even helpful).  Here’s the first one:

Scenario No. 1:

The husband and wife are both represented by attorneys in their divorce action. You represent the wife. The parties have reached an agreement which is approved by the family court judge at their final, uncontested hearing. The judge signs the divorce decree which provides for a merger of the agreement into the decree.

The agreement provides, in part, that the parties will sell “by owner” a 20-acre tract of land and divide the net sales proceeds equally. This tract is titled solely in the husband’s name.  Aside from this “marital asset”, which is the most valuable one to the parties, the other marital assets were several bank accounts and the furnishings, all of which have already been divided between the parties prior to their final divorce hearing.

Continue reading →