Practicing Family Law In The 21st Century – Series Post No. 5: Swimming In The Mediators’ Pool

On March 14, 2013, the South Carolina Supreme Court had ordered that, effective June 1, 2013, family court mediation would now become mandatory in 33 counties [South Carolina Supreme Court Court-Annexed Alternative Dispute (ADR) Rules]; however, I would bet the ranch that, mandatory or not, there is not a single attorney practicing family law in any one of the 46 counties in South Carolina who has yet to participate in a family court mediation.  Mediation has now become not only an integral part of the family law lexicon in South Carolina, but it also is very much at risk as being viewed and considered merely another stage in the arc of the family court litigation process.

“Mediation is the art of recovery”.  The objective of mediation is, and always should be, to return your clients’ futures to them by wresting control of those “futures” from the hands of strangers (i.e., judges, attorneys, guardians ad litem, mediators, etc.); mediation is, and always should be, intended to keep your clients as far away as possible from the vagaries and uncertainties of the “family courtroom experience”; mediation is, and always will be, intended to stop the creation (or formation) of your clients becoming lifelong enemies of one another, while allowing your clients to settle and resolve their conflicts on their terms, not yours, and by doing so, enable them to recover from the exquisite, indescribable pain of divorce.

An excellent Upstate family law attorney and close friend told me she was delighted to know that, even in my semi-retirement, I would still remain part of the “mediators’ pool”.  I know she meant that as a compliment, and I took it as such.  But the larger point is the most obvious one …

as mediation has become more commonplace, the “pool” of family law mediators has exploded exponentially.  Every South Carolina attorney practicing law (and not necessarily family law) is now (or certainly can be) a potential family court mediator (and if you’re not a certified family court mediator, no problem; just be sure you have the parties sign the “Consent to Selection of Uncertified Neutral – SCADR108F”).  Consequently, because we’re all now swimming in the mediators’ pool, I wanted to share with you eight of my “mediation experiences” (there are many more than just eight) where each “experience” immediately altered the way I conducted my future mediations:

1.  An attorney kept repeating to me (in his client’s presence of course) that he “preferred to go to trial” with his cases and that he didn’t like mediation.  He also constantly referred to the other spouse and her attorney as “the enemy”.

2.  The husband’s attorney stated to me that the “problem” was that his client always “caved in to his wife’s requests”, and unless the husband’s attorney told his client what to do during the mediation he knew his client would agree to anything the wife wanted.  The attorney told me that he would have “to do all the talking for his client” during the mediation.  So I then told the husband that he could leave the mediation because we obviously didn’t need him to stay there … and the husband and his attorney both thought I had lost my mind by making that statement.  Go figure.

3.  An attorney told me during the mediation – in her client’s presence – that it was “legal malpractice” to settle any family court case.

4.  Every time the husband’s side made an offer or a compromise or even a suggestion on any issue, the wife’s attorney would always blurt out “they’re crazy”, “that’s ridiculous”, or “we’re leaving if that’s all they’re prepared to offer”.  This same attorney also never authorized me to make any counteroffers, proposals or suggestions for settlement.

5.  I was requested to begin a mediation at 10 AM, and I was set up and ready to begin at that time.  However, I then had to wait  over 2 hours while the attorneys met together in a separate office to exchange pretrial discovery materials and documents which they had never previously exchanged with one another nor provided or shared with me.

6.  I began a mediation and one of the parties’ attorneys handed me over 20 pages of an itemized personal property list with values which I had never before seen, and neither had the opposing attorney.  That same attorney had never met with his client to prepare for this mediation, and the client was told to “just show up” at the mediation “to see if we can get the thing settled or not”.

7.  Ten minutes before the scheduled start of a mediation (the mediation had been formally scheduled for 2 months) one of the parties’ attorneys showed up and told me that his client would not be attending but would be “available” by telephone, if necessary.  This was the first time I had known about this, and it was also the first time the other spouse and that spouse’s attorney knew about it.  The spouse who was present had made alternate work and travel plans to be present at the mediation and was furious.

8.  The husband in a very contentious case – where it was apparently difficult for the parties to remain in the same room together – showed up for the mediation, walked directly into the conference room, immediately looked at his wife and said “well, you’ve finally lost weight”.

Of course, all of these MLEs (“mediation learning experiences”) constitute violations of ADR Rule 6; however, in filing our mediation reports, mediators are presently constrained from noting that the parties (and/or their attorneys) have not engaged in mediation in good faith.  Nevertheless, “you dance with the one who brung you”.