Litigation is expensive. Litigation is time-consuming. Alternatives to litigation exist, and mediation is a popular alternative in South Carolina. It allows each party an opportunity to speak freely, openly, and honestly with the guidance of counsel. The goal of mediation is to come to an agreement and avoid further legal disputes, legal costs, and litigation.
At Jung Disability and Injury Advocates, our ADR lawyer in Charleston counsels clients who agree to try mediation as an option to address their legal dispute. We will provide strong, sound advice and guide you through the process. Contact us at (843) 576-4200 to schedule a free consultation and to learn whether mediation might be a viable option for you.
Mediation as Alternative Dispute Resolution (ADR) in South Carolina
Mediation is a form of ADR where a neutral third party assists the parties to try and reach a mutually agreeable resolution.
In mediation, the parties retain a high degree of control over proceedings. They agree on the mediator—often someone with experience relevant to the subject of the dispute—and ultimately decide the outcome. The mediator doesn't suggest a settlement or adjudicate the matter like in arbitration. Instead, they aid discussions between the parties, encouraging them to find common ground.
Mediation can be ideal for cases where the parties want to maintain their relationship or where negotiations have become too emotional. A mediator can impartially assist the parties toward productive discussions.
Mediation may not be suitable where a party refuses to compromise or is reluctant to take part in the process. Given the informal nature of mediation, it may also not be appropriate where there is a power imbalance between the parties, and the one with more bargaining power seeks to take advantage of the other.
Types of Mediation in South Carolina
There are different types and styles of mediation available, depending on the state, the case, and the parties' preferences.
In facilitative mediation, the mediator guides a discussion between the parties to help them understand each other's position and interests. The mediator doesn't express their views but instead encourages the parties to find a resolution. A legal analysis of the case is usually secondary to the interests and wants of the parties.
In contrast, the mediator in evaluative mediation highlights the strengths and weaknesses of the parties' cases and may offer an opinion on the outcome of the matter at trial. For this reason, the mediator is usually a legal expert on the issue at the heart of the dispute who can give a legal analysis of the case.
While facilitative and evaluative mediation focus on resolution, transformative mediation aims to repair and rebuild the relationship between the parties so they can find an agreed resolution. The mediator does this by helping the parties to recognize and understand each others' interests and needs.
Evaluative mediation is often used in the context of court-mandated mediation, where the court orders the parties to mediate in an attempt to settle the matter before trial. Court-mandated mediation is mandatory and the parties must participate.
Med-arb combines features of both mediation and arbitration. The matter is first mediated. If the parties are unable to resolve the matter, the matter proceeds to arbitration where the mediator (now arbitrator) makes a binding decision quickly.
Arb-med also combines the mediation and arbitration processes but in reverse. An arbitrator conducts a hearing and issues a decision but seals it. The parties then try to mediate the matter with the arbitrator's (now mediator's) help. If mediation is unsuccessful, the decision is unsealed and becomes binding on the parties.
Common Areas of Law Using Mediation
Mediation is used in all areas of law, but it is most common in the following areas.
- Intellectual property
- Personal injury
- Real estate
Mediator Quialifications in South Carolina
Because mediation is an important step to resolution, because the mediator will play a major role in this effort, and because you choose who acts as the mediator in your case, it is important to identify the qualifications to be a mediator in South Carolina.
General requirements include the following:
- Training. Often mediators must have between 20 to 40 hours of approved mediation training. Additional training may be required for special areas of the law, like mediators for family disputes or civil disputes.
- Experience. Most states require mediators to have a minimum number of supervised mediations before they can independently mediate. Some states require mediators to be licensed to practice law.
- Education. The minimum for most states is a bachelor's degree, but the B.A. does not necessarily have to include a specific major.
Many states have additional requirements, including certification. To reiterate, each state will have some variation on these requirements. Your attorney can help confirm that the mediator you choose has the qualifications required and desired.
Advantages of Mediation in South Carolina
Mediation is used because it offers a number of benefits and advantages for both parties.
- More cost-effective. Mediation is generally a cheaper option than litigation as proceedings are informal and often less complex. While there is a mediator fee, the parties typically share this cost.
- Less time-consuming. Mediation may also lead to a faster outcome than a trial. There are generally many skilled mediators available to hear a matter, and mediation can be set up at the parties' convenience, rather than relying on a busy court schedule.
- Flexible outcomes. There is a range of potential outcomes available to parties in mediation. The court often has limited options, whereas mediation allows the parties to come up with more creative solutions.
- Preservation of the relationship between the parties. Successful, voluntary mediation can allow the parties to move forward with their relationship intact. Since the outcome is mutually agreed upon, the parties are more likely to follow it than a court-ordered version.
- Confidentiality. What happens in mediation stays in mediation. Mediation proceedings and outcomes are confidential.
Disadvantages of Mediation in South Carolina
Mediation has its downsides, too, depending on how it's perceived.
- No guarantees. If the parties cannot reach an agreement, they must still go to court despite investing time and money in the mediation process.
- No legal precedent. This means the outcome cannot be used to guide similar cases in the future.
- Limited legal protections. If there is a power imbalance between the parties, the stronger party could use mediation to their advantage. Unlike a trial, there are limited procedural protections for the weaker party.
Roles of the Mediator versus the Attorney
Many people wonder whether they need an attorney if there is a mediator. In most cases, an attorney is optional but is almost always beneficial. Here's an overview of a mediator's role versus an attorney's role in mediation.
- The mediator functions as a neutral facilitator.
- The mediator facilitates communication between parties.
- The mediator helps parties identify common issues and develop possible solutions
- The mediator helps parties work through possible solutions to come to an agreement.
- The mediator does not make decisions or give advice.
- The mediator does not lead either party in any specific direction.
- The mediator can choose to hold sessions together or separate the parties.
- The mediator controls how the mediation proceeds.
- The lawyer helps prepare the client for mediation by coming up with key points or issues to address and making sure nothing is left out or overlooked.
- The lawyer guides their client with the intention to work toward a resolution so long as it adequately aligns with the client's interests.
- The lawyer guides the client of risks and gains in any proposals formulated during mediation.
- The lawyer informs the mediator of any special needs the client may need.
- The lawyer ensures the client is not pressured into agreeing to anything contrary to their interests.
- The lawyer will help the client review any agreement originating from the mediation.
- If the parties settle on an agreement, the lawyer ensures the agreement is executed.
Mediation is a great way to avoid litigation and resolve legal issues. With the guidance and advocacy of an attorney, it can be effective. Contact Jung Disability and Injury Advocates today either by using our online form or calling us at (843) 576-4200 to schedule a free consultation. Our ADR lawyer will review your case and confirm whether mediation might be a suitable starting point.