Category Archives: Early Neutral Evaluation

“Early Neutral Evaluation” For The South Carolina Family Court Bench and Family Court Attorneys In The Wake Of Kosciusko v. Parham

For the South Carolina family court bench and family court bar, the South Carolina Court of Appeals in its published opinion in the case of Kosciusko v. Parham, S.C.Ct.App., Opinion No. 5690, filed November 6, 2019, (1) immediately compelled the cancellation of every scheduled binding arbitration where the issues for resolution were “child-related” [e.g., the school to be attended by the child; or the extracurricular activities in which a child could participate; etc.]; (2) immediately sent the family law attorney rushing to pull a file where a client’s court-approved settlement agreement had included a provision “compelling binding arbitration” in the event of the parents’ impasse on any child-related issue; (3) gave immediate pause to any sitting family court judge who, at some point during the trial of a case and while on the record, might have announced to the party-litigants that “I need to hear from the guardian ad litem who I consider to be the eyes and ears of the court”; and (4) required family law attorneys to determine what ADR “alternatives” now remained available to the attorney in the resolution of complex child-related issues given, perhaps, a client’s limited financial resources to wage seemingly unending litigation between warring parents.

Kosciusko v. Parham concluded by stating the following: “Based on the foregoing, we hold that the family court does not have subject-matter jurisdiction to sanction or approve binding arbitration of children’s issues. …”.

Full stop.

Although there is so much to “unpack” within Kosciusko, I found the following excerpts to be the beating heart of this opinion:

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South Carolina Supreme Court’s New Revisions To Rule 8 (Confidentiality) Of The South Carolina Alternative Dispute Resolution Rules

On or immediately after May 1, 2018, the South Carolina General Assembly will most probably have approved the South Carolina Supreme Court’s Order of January 31, 2018, making substantive and impactful revisions to Rule 8 of the South Carolina Alternative Dispute Resolution Rules (SCADR); and I believe, at least from my perspective, that the South Carolina family court practitioners should be aware that there may be certain “unintended consequences” resulting from these Rule 8 revisions.

SCADR Rule 8 is, and has been from its inception, the Rule governing the confidentiality of the mediation process.  Currently, Rule 8 begins by stating that “(C)ommunications during a mediation settlement conference shall be confidential”; and then the Rule moves forward from there.

The genesis for the “revised Rule 8” most probably came from the fairly recent case of Huck v. Avtex Commercial Properties, Op. No. 5500 (S.C. Ct.App. refiled on March 28, 2018), where one of the appellate issues focused on the appellant’s effort to disclose and introduce at trial a purported agreement which had been reached by the parties during their mediation; and in addressing that particular issue, the South Carolina Court of Appeals stated the following, in pertinent part:

“We find the trial court erred in denying Avtex’s motion to disclose settlement.  The documents referred to in Rule 8 are designed to protect any documents prepared for use by the mediator and the parties to the mediation itself.  Once the parties reach a settlement, documents prepared in conjunction with the settlement and release are not for the purpose of, or in the course of, mediation.  Rather, they are documents prepared in connection with the litigation and to bring the litigation to a close.  Rule 8 is designed to protect the communications made during the mediation itself and to protect the process.  The parties’ mediation agreement reinforces the rule and simply incorporates the same language.  The request for production of the settlement documents does not disclose confidential information from the mediation (i.e., it does not disclose or discuss information the parties utilized to reach the settlement).  Further, any confidential matters the parties do not want disclosed can be protected through court proceedings including confidential provisions.” (Emphasis added)

Our Supreme Court’s ordered revisions to SCADR Rule 8 are intended to offer more clarity (1) as to parameters of “confidentiality” during the “course of the mediation proceeding”, and (2) as to what can, will – or might – fall outside these “confidentiality parameters”.  And so with that stated, I would like to try and breakdown, section-by-section, the revisions to Rule 8 which will now govern the mediation process beginning around May 1, 2018, and I have tried to emphasize in bold lettering the “new revisions” from the current SCADR Rule 8, and then provide some brief “comments” regarding each of these revisions:

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How Do You Successfully Mediate Feelings – And Why Is “Validation” So Critical (And So Frequently Overlooked And Misunderstood By The Mediator)?

[Note to the reader: In 2010 I wrote much of what I’ve put into this particular post below, with the rather odd exception of my having failed to include “validation” as one of those “feelings” I was so often encountering as a family court mediator (and, most recently, as an early neutral evaluator).  However, over the years it has most often been validation which I have allowed to elude me, and which has created a significant hurdle in helping the parties reach a successful resolution of their litigation.  And so I thought it might be timely to revisit this particular subject, just to see if (and how) I had allowed my family court mediation practice to morph into its most current form.  Let me quickly add that for the many of us who have attended “mediation school” while becoming a certified family court mediator, our instructors use the word and the term, “validation”, within the first 2 hours of an intensive 40-hour course.  So let’s just start there.]

“Validation” is defined as “the recognition or affirmation that a person or their feelings or opinions are valid or worthwhile”.  And …

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

Having practiced family law for over 44 years, I am well now into my 9th year as a fulltime family court mediator and an early neutral evaluator, and I have determined that, on many levels, alternative dispute resolution (either as a mediator or an early neutral evaluator) has presented me with my greatest professional challenge…and here’s why:

I retired from the South Carolina 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…and big mistake.

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Early Neutral Evaluation In The South Carolina Family Courts – Finding A New (Better) ADR Way Forward

I very recently had the privilege of successfully joining with two of my great friends (and former colleagues on the South Carolina family court bench), Joseph W. McGowan, III, and Robert E. Guess, in a joint venture – “Early Neutral Evaluation Services”, and we formally launched our professional business model on January 1, 2018.

However, before I provided you, the reader, with the specifics about our particular business model (we are using a “team concept” approach), I wanted to spend some time reminding all of us family law attorneys that for almost 6 years now – since April 30, 2012 – “early neutral evaluation” (ENE) has been “hiding among the South Carolina Alternative Dispute Resolution Rules“, and that once we are able to “deconstruct” (so as to better understand) these ENE rules and target the family court issues the ENE rules are/were intended to resolve, then my two colleagues and I remain absolutely convinced that, within the next 5 years, “early neutral evaluation” in the South Carolina family courts will be THE first choice of dispute resolution utilized by our State’s family court bench and bar.  Period.

In researching the history of “early neutral evaluation” in my own efforts to better understand (a) what it was, and (b) how we could utilize it, if at all, in the South Carolina Family Court system, I came across an excellent article in FindLaw For Legal Professionals, entitled “Neutral Evaluation: An ADR Technique Whose Time Has Come”.  I found this article hugely helpful to me and enlightening, and I wanted to share just a few of its excerpts (there were more than a “few”, and I would urge that you please read the entire article if you have the time).  Here they are (and I’ve taken some slight editorial license on the emphasis):

“Any dispute resolution process by definition brings a certain amount of ‘baggage’ to the table, generated by its very structure and purpose.  This structural ‘baggage’, like everything else in life, always has a plus and minus to it.  For example, the primary structural baggage which litigation and the trial bring to the table is the requirement that there be a winner and a loser. …

The baggage which arbitration brings to the table is similar: arbitration is an adjudicative process, where the win/lose hammer can be even more final than in classic litigation, and thus where the stakes can lead to nearly as much desperation, expense and insane results as a trial (it just happens a little bit more quickly, and you can drink coffee and eat donuts in the comfort of some attorney’s office while it happens to you). …

The baggage which mediation brings to the table is primarily emotional: mediation is avowedly a settlement process, where the parties have already, just by agreeing to engage in it, let down their guard a little bit as far as their ‘toughness’ about the ‘invincibility’ of their positions.  This aspect of mediation, i.e., the fact that by its very structure it requires the participants to acknowledge that they are there to settle the case, often presents such a psychological barrier that the technique never gets used until the parties are forced to use it …

Neutral evaluation, on the other hand, carries with it neither the settlement baggage of mediation, nor the adjudicative baggage of (trial and binding) arbitration.”

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