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.
Currently required in 33 out of the the 46 counties in South Carolina, mandatory mediation was formally created by a May 3, 2006 Administrative Order of the South Carolina Supreme Court as a “safety net” for the litigants and their attorneys – a mini-firewall standing in the way of a final hearing of the litigation. The original number of mandatory mediation counties was 7; and, as originally intended, mediation was also to be used by the family court attorney to achieve an “equitable result” – not a perfect result – for his or her clients, and by doing so, completely avoid having to face the expense and inherent dysfunction of the family court litigation process. [In SCADR Rule 1, as amended, the Supreme Court expressly stated that the “(T)hese rules shall be construed to secure the just, speedy, inexpensive and collaborative resolution in every action to which they apply“.]
Family court mediation was never intended to have any negative (or even unexpected) consequences; there was to be absolutely no downside from entering into mediation in good faith – and absolutely no risk to the litigant from wanting to mediate the case. After all, there could be only 3 possible outcomes from a professionally-conducted mediation: “Yes” (in reaching a complete settlement); “No” (in reaching a complete impasse); or “Maybe” (in either settling at least some of their previously-intractable issues or in the parties’ agreeing to continue with future mediation).
Mediation in the family court system has been around for several decades, and certainly for many years preceding May, 2006. So what happened after May, 2006, to change not only the original objective (and expectations) of mediation, but also how family law attorneys began to view mediation as a decreasingly significant piece of the litigation puzzle?
One could easily argue that the answer to the question is certainly more nuanced, but these would be my thoughts: first, the South Carolina Supreme Court made family court mediation mandatory, and then the Court incrementally expanded the number of counties affected by this mandatory process, and then the “365-Day Benchmark Rule” morphed into its current, “the-clock-is-ticking”, stage, and then family court mediators morphed into being quasi-family court docket clerks [SCADR Rule 5(g): “…The case shall not be docketed in family court for trial until a Proof of ADR is filed.”].
Stated otherwise, as a unintended consequence of mandatory mediation becoming such a ubiquitous part of the case docketing process, along with your mediators subsequently being involved in an unexpected role in the actual case management stages of that same case docketing process, the family law attorneys and their clients went from the “wanting to” engage in mediation, to the “needing to” engage in mediation; and with that, the entire psychology of the mediation process changed consequentially.
I’m curious if you would view any of the following to be an “unintended consequence” of mandatory mediation?
- In the arc of your representation of your client, at what point do you first discuss mediation as an immediate alternative to continued litigation (in your initial interview? … after you’ve “lost” or “won” at the first temporary hearing? … after pretrial discovery has produced very little in the way of useful trial information?); or do you inform your client that “we will need to go through mediation before they can schedule a final hearing in this case, and we also need to make sure we finish mediation before the 365-day deadline”? And what are you “telegraphing” to your client by your use of these terms, “wanting to” and “needing to”?
- Family law attorneys have placed an ever-decreasing importance on the need to spend time in preparation for the mediation (i.e., the effort to hold down the overall cost of litigation trumps “spending billable time” in mediation preparation; and in many cases the attorney waits to meet with the client until the day immediately prior to the mediation date, if at all).
- The scheduled mediation is so clearly (and knowingly) premature that there isn’t even a remote chance or expectation of success (i.e., pretrial discovery has not been completed; financial information has not been exchanged between the attorneys; the guardian ad litem has not completed his/her preliminary investigation or report; a court-ordered psychological evaluation has not been scheduled); however, because the attorneys have delayed scheduling the mediation, there is now an urgency to “just get through it” so that the mediation report can be filed and a final hearing can be requested.
- The attorneys are ordered by the family court judge at the initial temporary hearing to schedule mediation within 90 days of that temporary hearing (i.e., the case was ordered to an early mediation because of the judge’s belief that the parties had a window of opportunity to reach an agreement before their continuing litigation hardened their positions); however, the attorneys have ignored the judge’s court-ordered mediation timelines because both attorneys are simply “not ready” to schedule mediation, and neither attorney is going to force the other one to do so (the attorneys don’t “need to” have the case mediated yet).
Think of it this way: none of your clients “needs to” mediate his or her case except within the framework of the litigation , and it’s only the attorney who truly needs to complete the mediation within these fixed timelines. However, your professional responsibility to your client (i.e., the “attorneys’ side”) is to place your client on the path of “wanting to” mediate, settle the litigation, and allow them to move on with their lives.
In other words, opt for “Plan A”.