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:

…every family court judge who does not carry the immediate title of “chief administrative judge” (CAJ) – past, present, or future – could care less whether your case is tried – or scheduled to be tried – within 365 days of its commencement date….there is always plenty of other work to handle.  But, every CAJ cares to the marrow of his or her bones that your case has been completed or set for trial within that 365-day period – it’s called “the Family Courts’ 80% benchmark requirement” (euphemistically described as “SCJD Transparency”) and it is a statistic sent out by the South Carolina Court Administration to every CAJ as a not-so-gentle “reminder” of the number and percentage of cases, per judicial circuit/per county, which have not been docketed for a final hearing or disposed of within this 365-day timeline; conversely, it becomes hugely problematic for your CAJ when the number of filed cases not docketed/disposed of within this 365-day period exceeds 20% (“problematic” to the point that the CAJ may actually be contacted by a member of the Docket Management Task Force “inquiring as to the problem”…and no CAJ ever wants to receive that “contact”).

Enter “mandatory mediations in family court” (and the improbability that there could ever be unintended consequences resulting from this “gift” given to the family court bench and to all family court litigants and their attorneys).

Family court mediation was neither created nor intended to be the panacea for the family court bench in this quest to “outrun the numbers”.  But mediation was also never intended to evolve into simply another “stage of the litigation process” in the family courts – a “stage” that was required to be completed before the case could be scheduled for trial; and your family court mediators were never expected to evolve into becoming such an integral part of the case docketing process (to a large extent, and in lieu of a pretrial/scheduling conference, the mediation report is now relied upon in setting the amount of time requested for a final contested hearing).

Rather, I want to believe that in a “mandatory mediation county”, and as it really should be in all 46 counties, a family court judge’s greater emphasis on (1) the intended purpose of mediation and (2) the careful crafting of an order which requires both the attorneys and the party-litigants to engage in a meaningful mediation, with an expectation that this participation in mediation in good faith is intended to result in a full and final settlement, would accomplish all of the following: (1) the true objective of mediation in serving as the “stop sign” for the litigation, (2) the true objective of mediation in achieving a huge savings of time and money to the bench, bar and litigants, and (3) the true objective of mediation in greatly facilitating the family court bench’s quest to “outrun the numbers”.

In Part 2 I will visit the “attorneys’ side”.