Mediation in South Carolina

Which family court cases must mediate

Rule 3(a) makes all contested issues in domestic relations actions filed in family court subject to court-ordered mediation, alongside civil circuit court cases. The only exceptions are those listed in Rule 3(b). Those exceptions include requests for temporary relief, contempt proceedings, and family court cases initiated by the South Carolina Department of Social Services, among others. A party can also file a case-specific motion to exempt a case from ADR under Rule 3(c). The Chief Judge for Administrative Purposes can grant that motion for good cause. Good cause includes situations where a party cannot participate due to incarceration or a physical condition.

How mediation gets scheduled and required before a hearing

Rule 4(d) governs mediator appointment in family court. If custody or visitation issues are unresolved, the court can order early mediation of those issues on its own motion or a party's motion. More broadly, if any issues remain disputed and no Proof of ADR has been filed showing mediation happened, the parties must mediate first. Only then can the court schedule a hearing on the merits.

When the parties request a merits hearing, they must name a stipulated mediator or ask the clerk of court to appoint one. If no mediator is stipulated, the clerk appoints a primary and secondary mediator from the certified Roster. The clerk uses a rotating basis among mediators who accept cases in that county. Either party can also request a mediator appointment at any time. Once appointed, an initial mediation conference must happen within 30 days. Mediation must be completed, with a Proof of ADR filed, before a merits hearing can be scheduled.

Alternatives to mediation and mediator qualifications

Rule 4(d)(5) lets parties submit property and alimony issues to binding arbitration under South Carolina's Uniform Arbitration Act, instead of mediation. Parties can also submit all issues to early neutral evaluation. Under Rule 4(a), a neutral must either be a certified neutral under Rule 19. Or the neutral can be a person all parties agree is qualified by training or experience. In that second case, the lack of certification must be disclosed, and all parties must give written consent. The Board of Arbitrator and Mediator Certification maintains a public Roster of certified neutrals willing to serve in each county under Rule 4(b).

Cost of court-appointed mediation

When the clerk of court appoints the mediator under Rule 4, Rule 9(b) sets the mediator's compensation at $200 per hour. No more than one hour can be billed for preparing the initial conference, and there is no charge for travel time. Expense reimbursement is limited to standard IRS mileage rates and reasonable advanced costs up to $150. A mediator can charge no more than $200 to cancel a scheduled conference. Under Rule 9(c), fees are split equally between the parties unless they agree otherwise or the court orders differently. Fees are due at the conclusion of the conference. A party who cannot afford the fees can file an indigency application under Rule 9(d) before the conference is scheduled. Anyone already granted in forma pauperis status is automatically exempt.

Confidentiality of mediation communications

Rule 8(a) makes any mediation communication confidential: oral, documentary, or electronic. It requires the parties, their attorneys, and anyone else participating to sign an Agreement to Mediate protecting that confidentiality. Settlement views, admissions, mediator proposals, and mediation records generally cannot be used as evidence in any later proceeding. Under Rule 8(b), confidentiality is waived as to the terms of a signed agreement once the parties sign it. Rule 8(c) lists narrow exceptions. These include information used to plan or conceal a crime, professional malpractice or misconduct claims tied to the mediation, and establishing or challenging a resulting settlement agreement. Under Rule 8(g), the mediator cannot be compelled to testify or produce records about the mediation in any adversary proceeding.