Exempting Your Family Court Case From Mandatory Mediation

Although it may be counter-productive of me to post this suggestion, given that I make my living mediating family court cases, in those cases which warrant this action I’m wondering if you’ve ever made (or considered making) a formal request of your chief administrative judge (CAJ) to exempt your clients’ case from mandatory mediation?

ADR Rule 5(e), SCADR, states the following:

“(e) Motion to Defer or Exempt from ADR.  A party may file a motion to defer an ADR conference or exempt a case from ADR for case specific reasons.  For good cause, the Chief Judge for Administrative Purposes of the circuit may grant the motion.  For example, it may be appropriate to defer an ADR conference or completely exempt a case from the requirement of ADR where a party is unable to participate due to incarceration or mental or physical condition.”

Additionally, the South Carolina Court of Appeals in Roesler v. Roesler, 396 S.C. 100, 719 S.E.2d 275 (Ct.App.2011), affirmed the right of the CAJ to have exempted that case from mandatory mediation.

I’m fully aware that ADR Rule 5(e) states that a “motion to…exempt” may be filed by the requesting attorney/party; however, because this Rule does not compel that a motion be filed, it may be entirely possible that your CAJ may entertain your written request for such an exemption; and, consequently, I’m providing your with the following form letter which might serve your purpose, and at minimal cost to your client.



Honorable (name of family court judge)
Chief Family Court Judge for Administrative Purposes
Post Office Box —–
(City – SC – zip code)

Re: Jane Doe vs. John Doe
File No. 2010-DR-___-_______

Dear Judge ————–:

First of all, pursuant to Rule 5(b)(3), SCRCP, and prior to my sending this letter, I have previously consulted with the opposing counsel whose name is listed below, and (name of opposing counsel) is both aware of this contact with the court and has joined in this request.

Pursuant to ADR Rule 5(e), and in lieu of filing a motion, we are respectfully requesting that the abovecaptioned case be exempted from ADR for the following reasons, and that this case be docketed for a final hearing as soon as practicable:


• The (plaintiff) (defendant) (both parties) meet(s) the current federal poverty guidelines and are unable to afford the cost of mediation [please see the attached affidavit(s) of the (plaintiff) (defendant) (parties) regarding (his) (her) (their) current income(s)].

• The parties and counsel have previously held good faith settlement conferences, without success, and it is the professional opinion of counsel that any mediation will not only prove to be unsuccessful, but it may even exacerbate the disputes between the parties.

• Pre-trial discovery has been completed. While the parties and counsel are prepared, in continued good faith, to engage in pre-trial conferences with the court, it is the professional opinion of counsel that mediation will not resolve the case nor result in the settlement of any of the contested issues.

• The parties and counsel have previously engaged in a pre-filing mediation which proved to be unsuccessful, and it is the professional opinion of counsel that any post-filing mediation will prove to be equally unsuccessful.

• The defendant(s) (has) (have) been served in accordance with Rule 4, SCRCP, and are in default.

With all due respect, and in an effort to save the court time, I have provided a “response from the court”, below.


(Name of submitting attorney)

cc: (Name and fax number of opposing counsel)
* * * * * * * *

This case shall be exempt from ADR.    ______________

The request to exempt this case from ADR is denied.  _________________

Chief Family Court Judge for Administrative Purposes