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Is mediation mandatory in SC divorce proceedings?
What is mediation and how can it benefit me in my divorce case? If mediation is mandatory, who pays for it? Can the court force me to pay for it even if I don’t want to do it? I’ll discuss these questions below, and, hopefully, answer any questions that you have about divorce mediation in SC.
If you are considering a separation or divorce and have questions about mediation, call your Myrtle Beach divorce attorney at Axelrod and Associates now – we will answer any questions that you have, let you know what your next steps are, and help you through what we understand may be a difficult and painful process.
Is mediation mandatory in SC divorce cases? In general, mediation is mandatory in every divorce case in Horry County and throughout South Carolina, although there are some exceptions.
Rule 3 of the SC Alternative Dispute Resolution (ADR) rules says that mediation is mandatory in all civil cases and in all family court cases where there are issues in dispute, including divorce cases:
(a) Mediation. All civil actions filed in the circuit court, all cases in which a Notice of Intent to File Suit is filed pursuant to the provisions of S.C. Code 15-79-125(A), and all contested issues in domestic relations actions filed in family court, except for cases set forth in Rule 3(b) or (c), are subject to court-ordered mediation under these rules. Except for exempt cases, in all civil actions filed in the circuit court and all contested issues in domestic relations actions filed in family court, the parties may agree, in lieu of mediation, to conduct an arbitration or early neutral evaluation under these rules. The parties may select their own neutral and may mediate, arbitrate or submit to early neutral evaluation at any time.
Are there any exceptions to mandatory mediation in SC?
Rule 3 also provides a number of exceptions where ADR is not required, including:
(1) special proceedings, or actions seeking extraordinary relief such as mandamus, habeas corpus, or prohibition;
(2) requests for temporary relief;
(4) post-conviction relief (PCR) matters;
(5) contempt of court proceedings;
(6) forfeiture proceedings brought by governmental entities;
(7) mortgage foreclosures;
(8) family court cases initiated by the South Carolina Department of Social Services; and
(9) cases that have been previously subjected to an ADR conference, unless otherwise required by this rule or by statute.
Is mediation mandatory when there are no disputed issues in your divorce case? The family court can grant a motion exempting a case from ADR “for good cause:”
(c) Motion to Exempt from ADR. A party may file a motion to exempt a case from ADR for case specific reasons. For good cause, the Chief Judge for Administrative Purposes of the circuit may grant the motion. For example, it may be appropriate to completely exempt a case from the requirement of ADR where a party is unable to participate due to incarceration or physical condition.
If all issues have already been resolved in your divorce case by agreement of the parties, including child support and child custody issues, you will also be exempted from mandatory mediation.
Mediation is a form of Alternative Dispute Resolution (ADR), which includes both mediation and arbitration. Mediation is mandatory in SC divorce cases, while arbitration is not.
Alternative Dispute Resolution (ADR) is a method of resolving disputes outside the courtroom. Whether your case is an auto accident, a wrongful death case, or a divorce proceeding, the courts want you to resolve it before you enter the courtroom – saving the court time and resources and helping them to catch up their backlogged dockets.
If the issues in your case are not resolved at mediation or through negotiations, the court will decide those issues at trial.
During mediation, a certified mediator will attempt to negotiate with both parties to find an agreement that everyone can accept. The most common issues that may be resolved in mediation include:
Unlike arbitration, where an arbitrator announces a decision based on the evidence in the case, mediation is not binding. The mediator will not order you to accept an outcome you do not want, and both parties must agree to any negotiations.
In many cases, mediation will result in an outcome that both parties can live with. When a judge decides the issues at trial, you are stuck with the judge’s decisions whether you like them or not and whether they seem fair or not.
Mediation allows both parties to present their issues and discuss them through a neutral mediator who is trained in negotiations – your mediator’s job is to help you avoid trial whenever possible.
Mediation will usually cost less than a trial in the family court – litigation costs additional attorney time for preparation and the trial of your case and will often result in additional motions, hearings, and appeals from the judge’s decision.
Mediation in a divorce case is confidential – the mediator will not reveal any information that was disclosed during negotiations, and statements made during negotiations are generally not admissible at trial.
The mediator must be paid. Although it is negotiable, usually each party pays one-half the cost of the mediator’s fees.
Although it could be scheduled at any time, mediation usually happens after discovery has been completed but before the trial.
If you are considering separation or divorce, we can answer your questions about mandatory mediation in SC divorce cases and help you to determine your next step. call your SC family court attorney at Axelrod and Associates now at 843-916-9300 or fill out our contact form to set up a consultation.
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