Monthly Archives: July 2014

How Do You Successfully Mediate Feelings

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

Having practiced family law for over 40 years, I am now into my 6th year as a fulltime family court mediator and arbitrator, and I have determined that, on many levels, mediation has presented me with my greatest professional challenge. I’ll explain.

I retired from the 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.

Mediation forced me – no, it required me – to become enmeshed with the feelings of the parties.

I understand all too well that the feelings of the parties who participate in the mediation process not only matter, but form the engine which drives the process forward. These feelings include (often all at the same moment in time) –

• Anger
• Bitterness
• Hurt
• Mistrust
• Frustration
• Helplessness
• Hopelessness
• Sadness
• Anxiety
• Loss
• Confusion
• Dependency

For the mediator, understanding and being constantly aware of, and attuned to, the nuances of the parties’ (and quite often their attorneys’) feelings which they bring to the mediation session are absolutely essential in lending towards a resolution of the case.

To the attorneys who are participating in the mediation let me please offer the following:

a. A mediation is not a family court hearing which is intended to be conducted (started and ended) within a finite period of time. Please don’t arrive leaving. Mediation should be a family law attorneys’ best friend.

b. I would urge every family law attorney who participates in mediation to remember these words: Mediation is a process which will have a point-of-beginning, but which will end when it is supposed to end.

c. Please give your mediator time to work with your clients to discover whether your client’s feelings continue to create a wall or barrier which prevents a reasoned and reasonable discussion affecting the resolution of his or her case. Your mediator will know, often instinctively, when it is time to try and break through this wall. In other words, cut the mediator some slack.

To the clients who are participating in the mediation:

a. You must trust your mediator to level the field for both sides. A mediator is a “neutral”…and you should both embrace and understand the significance of that term.

b. Your feelings matter to your mediator, but you also have an obligation to be both honest and candid with your mediator as to whether the feelings which you have brought to the mediation process make it impossible for you to make reasoned and reasonable compromises towards the resolution of your case.


Revisiting Crossland v. Crossland

On July 2, 2014, a unanimous South Carolina Supreme Court in Crossland v. Crossland reversed a 2012 decision of the South Carolina Court of Appeals on all issues (alimony, equitable division, and attorney’s fees), fully reinstated the family court judge’s order, and in the process gave South Carolina’s family court bench and bar one of the most impactful opinions rendered by our appellate courts in years.

The Crossland opinion offered a broadened view and an in depth discussion affecting an array of significant family law areas including:

  • how an appellate court determines whether a judge has “abused his or her discretion” in rendering a decision;
  • the application of the “alimony factors”;
  • a footnoted discussion regarding future modification of an alimony award;
  • the family court judge’s broad discretion to award alimony and determine the amount of the award without being held to any mathematical formula or “bright-line rules”;
  • a detailed discussion regarding “imputation of income” and “earning capacity”;
  • the appropriate test or standard for the family court judge to employ regarding when and how to measure or determine the financial impact of a party’s eligibility to receive “government benefits”, such as Social Security retirement benefits;
  • the application of the “equitable apportionment factors”;
  • the implication of the appellate courts’ favoring a 50-50 division of the marital estate in long-term marriages; and
  • the application of the factors governing an award of attorney’s fees and litigation costs.

I want to take three excerpts from this opinion which I believe might be of interest, significance and importance to the family law bar (I’m omitting any statutory or case law cited within these excerpts):

“An award of alimony rests within the sound discretion of the family court and will not be disturbed absent an abuse of discretion. …  The inartful use of an abuse of discretion deferential standard of review merely represents the appellate courts’ effort to incorporate the two sound principles underlying the proper review of an equity case.  Those two principles are the superior position of the trial judge to determine credibility and the imposition of a burden on an appellant to satisfy the appellate court that the preponderance of the evidence is against the finding of the trial court.” (Emphasis added)

“Wife seems to ask this Court to create a rule that income should never be imputed on the basis of eligibility for government benefits; however, a bright-line rule is not only unnecessary in light of existing case law, but also inadvisable. … We leave it largely to the family court judge’s discretion, however, to determine what is an appropriate alimony award in light of the circumstances of each individual case.  Formulaic principles and bright-line rules will only hinder the ability of family court judges to reach an equitable result in this individualized, fact-sensitive area of law. …“. (Emphasis added)

“This Court has held while there is certainly no recognized presumption in favor of a fifty-fifty division, we approve equal division as an appropriate starting point for a family court judge attempting to divide an estate of a long-term marriage. … The purpose of the general fifty-fifty division is to protect the non-working spouse who undertook the household duties, and to prevent an award ‘solely based on the parties’ direct financial contributions’ “. (Emphasis added)

I would strongly encourage that you make a number of copies of the Crossland case and place a copy in every case file which involves any of the issues addressed in this opinion, because I’m reasonably certain that your family court judge will have a copy of this case on his or her bench, and will be referring to it frequently in the decision-making process.


A Mediation Primer 101


From the “practical” to the “psychological” –
10 guaranteed ways to reduce your client’s mediation fees
and greatly increase the opportunity for a successful mediation

1. If your clients or you have any questions regarding the mediator’s fees and the mediator’s billing/invoicing practices, communicate those questions/concerns with the mediator immediately and before you engage the services of the mediator. It is important for you to realize that the Ethics Advisory Committee of the South Carolina Bar previously issued a modified opinion which stated, in pertinent part, that “…if an attorney hires a mediator, the attorney is responsible for ensuring timely payment. If the court orders a mediator, the attorneys should look to the courts for assistance in determination of how the payment will be rendered”.

2. As soon after the mediation date, time and location have been confirmed, have your administrative assistant send your mediator (by e-mail, scan, fax or mail), the following basic information:

a. The pleadings.
b. Any order which has been entered of record.
c. A completed and accurate financial declaration. It is fine to send the financial declaration which was filed for your initial hearing, unless that version is more than 6 months old (however, if all of the entries on the “old version” remain exactly the same, then advise your mediator of that fact).
d. A brief memorandum of the “relief” your client is interested in seeking at the mediation (mark it as “confidential – for mediator’s review only”).
e. Any written settlement offers which may have been exchanged with the opposing attorney.

3. Realizing how busy you are, if you have scheduled the mediation comparatively well into the future (e.g., a month or longer), please do not wait until the week before the mediation to begin forwarding the requested information. As in any case, if you treat the mediation process as “something to get through without your having to do too much work in preparation”, you’ve actually wasted your client’s money, because the “window of opportunity” for a successful outcome becomes too narrow. Just as you must prepare for a trial, you should at least give your mediator an opportunity to prepare to conduct not just a mediation session, but a successful mediation session.

4. The best mediations (and the ones which most often settle rather quickly) are those where the attorneys and their clients have come to the mediation prepared to make a firm opening settlement offer to the other side (it must be presumed this is an offer which has not already been rejected by the other side…there must be a new component to it).

5. Immediately forward to your clients any e-mails or correspondence sent you by your mediator. It cost your client nothing for you to “forward” an e-mail sent you by your mediator. Although you may not have the time (or wish to take time) to read and digest these transmissions, rest assured that your client is keenly interested in being fully informed about this process, and he or she is relying upon you to provide information and explanation about mediation. Your client does not know the mediator…your client knows you.

6. If you are truly interested in fully settling your client’s case at mediation, then you must emphasize to your clients the opportunity which a mediation (entered into in good faith) will present them. No attorney has ever questioned that a case settled in mediation is ultimately much less expensive to your client than a case which goes to trial. Consequently, and unfortunately, if you minimize to your client the important opportunity which mediation offers, then you should most probably not even bother with mediation.

7. If you know prior to the date of the mediation that your client and/or you are not prepared to settle the entire case, you must professionally and ethically make that position known to the opposing attorney and, of course, to the mediator. Do not begin a mediation session only to inform the mediator that you knew ahead of time you were not prepared to settle certain issues that day. Although, for example, settling 70% of a case at mediation may sound promising, the “unsettled issues” may ultimately undermine the entire mediation process and result in a rescission by a party or parties on even the “settled matters”. [Remember that in family court an agreement reached in mediation is never final until the family court judge (a) approves the agreement, (b) signs an order approving the agreement, and (c) the order is entered in the Clerk’s Office.]

8. During the mediation session you should not openly undermine the mediator’s conduct of the mediation. A mediator is a complete neutral in this process, and has, as his or her objective, a goal of being able to reach a full and final settlement of your case. If in your client’s presence you “challenge” the mediator’s method of conducting the session, you will bring the mediation to an immediate standstill, and impasse. (With that said, if you truly believe the mediator’s impartiality is in question, then request a private conference with the mediator and the opposing attorney only, without the clients present, and then voice your concerns openly and frankly.) You must remember that your client is relying upon you for your advice and guidance, not on the mediator. Consequently, and psychologically, once you plant in your client the perception that the mediator is no longer completely neutral, the chance for a successful mediation is remote, if not impossible.

9. Please do not trivialize a mediation session as being “less important” than the trial of a case inside a family courtroom…and do not trivialize the work of a competent mediator. It is far better – and much less expensive – for your clients and you if you request that your chief administrative family court judge (CAJ) waive mediation in your case, rather than your making only a half-hearted attempt to participate in this process. Where professionalism and professional courtesies are involved, mediators, like attorneys, have long memories.

10. And finally, you are once again urged to consider entering into a blended form of mediation/arbitration, which is gaining acceptance statewide as the ultimate form of a family law dispute resolution. Ethically, however, in agreeing to this form of ADR, your clients and you should be prepared to agree there will be no “confidential mediation” matters which might temper or impact upon the mediator’s role on the “arbitration” side of this process. Nevertheless, if your clients and you are intent on bringing a final resolution to the case, then a blended mediation/arbitration process should provide you with that excellent opportunity.

Revised 2014 South Carolina Child Support Guidelines

This post will be brief and is simply to serve as a reminder to the family law bar that, as you are most probably aware, the South Carolina Child Support Guidelines have been revised, effective July 1, 2014.

Although I have not yet had the time to make a line-by-line comparison between the 2006 Guidelines and the 2014 version, I did notice that the “maximum combined earnings level” has been increased to $30,000 per month or $360,000 per year, above which thresholds the court would establish the amount of the payor’s child support on a case-by-case basis.

I also noticed under “Unusual Custody Arrangements – Shared Parenting Arrangements” where a “graduated support obligation” would be used if the nonplacement parent has more than 109 overnights but less than 128 overnights of timesharing, including provisions addressing the mechanisms to be used by the family court in determining the amount of the payor’s support obligation.

Finally, there is a revised “Periodic Review” provision which will certainly be of interest both to the family court bench and bar.

As I continue to work through these “comparisons”, I will try and post further comments in the future.

Do We Modify Or Just Ignore The South Carolina Family Court’s Discovery Rule?

I, for one, always found comfort in the simplicity of this State’s long-standing “discovery rule” for the Family Courts – Rule 25, SCRFC.

“RULE 25

Recognizing the unique nature of the court’s jurisdiction and the need for a speedy determination thereof, the prompt voluntary exchange of information and documents by parties prior to trial is encouraged. However, formal depositions or discovery shall be conducted only by stipulation of the parties or by court order upon application therefor in writing. Such an order may prescribe the manner, time, conditions and restrictions pertaining to the deposition or discovery.”

How times have changed.

In the current 21st century practice of family law in South Carolina no attorney would dare rely upon Rule 25 as the mechanism for engaging in pretrial discovery, and I’m not aware of a single sitting family court judge who strictly enforces the use of this Rule. Rather, due to (1) the very nature of litigation and advocacy in general, (2) the often high stakes involved in marital litigation (whether the issues are child-related or the division of marital assets), and (3) attorneys suing attorneys in legal malpractice actions, the common practice is for the attorney to stand up in family court at a temporary (pendente lite) hearing and announce, “Your Honor, all of the issues are presently contested, except that both attorneys stipulate we will be allowed to use the discovery rules of the South Carolina Rules of Civil Procedure.  By the Court: That request is granted, now please be seated so I can review the parties’ affidavits”.

Rule 25, SCRFC? … long forgotten.

The “Pandora’s Box” of the Family Court – referred to as “pretrial discovery” – is opened, and along with it are your clients’ bank accounts, as the litigation-related costs of discovery move ahead virtually unchecked.

In 2005, Family Court Judge Jerry D. (Jay) Vinson, Jr., and I proposed the following Rule 25 amendments to the South Carolina Conference of Family Court Judges.  Our proposal was defeated unanimously by a voice vote…well, not quite unanimously, Jay and I voted “yes”.

….read more

In the modern-day practice of family law in South Carolina do we modify Rule 25 in a meaningful, useful, and cost-effective way, or do we just ignore it?  I, for one, believe that decision was made a long time ago.

Developing A Trial or Mediation Strategy By “Deconstruction”

The longer I was able to practice family law in South Carolina, whether as a sole practitioner or as a fulltime mediator, the more convinced I became that it was absolutely essential to “deconstruct” the case I was preparing for trial or mediation.  Stated differently, I found it was critical that I try my case (or mediate it) from “the end back to the beginning”…I found that my chances of a successful outcome were dramatically increased if I tried – or mediated – a case from Z to A.

As a family law attorney, isn’t it a monumental waste of your time to develop a trial strategy without first having a bedrock understanding of, and a laser-like focus on, the outcome you want to achieve?  Do you typically “construct” your case from the ground up by calling your witnesses, introducing your evidence, and conducting your cross-examination as if you’re putting together the pieces of a jigsaw puzzle during your trial, hoping that the pieces all fit together perfectly by the trial’s end and in such a way that you’ve made a compelling case for your trial judge?

The very best family law attorneys who came before me had already prepared their “outcomes” before they ever called their first witness; and it was fascinating to watch these attorneys carefully deconstruct their case, witness-by-witness, exhibit-by-exhibit.  As a basic example of this strategy, and if the client was seeking an award of alimony, this attorney in his or her pretrial preparation would have already prepared the following:

  • the client’s testimony to address the “thirteen alimony factors”, factor-by-factor, in detail;
  • the client’s carefully prepared and accurate financial declaration demonstrating the need for an award of a specific amount of alimony necessary to make up the monthly “shortfall” (the attorney would make sure that any discretionary items in the financial declaration were not only reasonable, but purposely undervalued, making them more easily defensible under cross-examination);
  • a CPA’s review of various alimony amounts to ascertain the “after-tax” values in the event the judge might make the alimony award taxable to the client;
  • the cross-examination of the potential payor spouse, with a careful consideration of calling that spouse as an adverse witness in the event your client is the plaintiff.

Let me emphasize that your “job” as your client’s advocate is to make it easier for your trial judge (1) to understand your case thoroughly, and understand it sooner rather than later, and (2) to very comfortably decide the trial issues in your favor.

In the near future, I’m going to discuss how you (and your mediator) can also use this same “deconstruction strategy” in all of your mediations to significantly increase your opportunities for a successful (and final) resolution of your client’s case.