District of South Carolina
IN BRIEF
Process summary
Mediation.
Under Local Rule 30.00, adopted July 12, 1995, the District of South Carolina has established a voluntary mediation program. See below.
Settlement week mediation.
The court experimented with settlement week mediation in the fall of 1993. Several hundred trial-ready cases in two divisions were set on a settlement week calendar, and local attorneys selected and trained by the court conducted the mediation sessions pro bono. Although parties were permitted to remove their cases from the settlement week process, few did so. Because of the procedure's effectiveness, the court established its new mediation program.
Summary jury trial.
The court has experimented on occasion with the summary jury trial. Cases are generally referred after discovery has been completed.
Judicial settlement conferences.
Some magistrate judges who handle pretrial discovery for the district judges also hold settlement conferences.
Of note
Evaluation.
The court's mediation rule authorizes the clerk to collect statistical data from mediators and parties.
For more information
Larry W. Probes, Clerk of Court, 803-765-5789
IN DEPTH
Mediation in South Carolina
Overview
Description and authorization.
On July 12, 1995, the District of South Carolina adopted Local Rule 30.00, which authorizes a voluntary mediation program. The process relies on attorney-mediators, whose role is to encourage and facilitate settlement of disputes. The mediator is authorized to meet jointly and in private caucuses with the parties, but may not make a decision or impose a settlement. All civil cases filed in the district are subject to mediation, but referrals are made only with party consent. The mediation process is confidential and is paid for by the parties.
Number of cases.
This information is not yet available.
Case selection
Eligibility of cases.
All civil cases are eligible for mediation. No case type is presumed ineligible or inappropriate.
Referral method.
Each judge determines whether mediation would be promising in a particular case. Referrals are made only with party consent.
Opt-out or removal.
Parties may decline to participate in mediation by notifying the court.
Scheduling
Referral.
A case may be referred to mediation at any time.
Written submissions.
Before the session, the mediator may require the parties to provide memoranda of five pages or less setting forth their positions. With the consent of the parties, the memoranda may be exchanged by the parties.
Mediation session.
Unless otherwise ordered, the initial mediation session must be held within thirty days of agreement on or appointment of a mediator. Mediation must be completed, unless otherwise ordered, within thirty days of the initial session. The mediator schedules the session.
Number and length of sessions.
This information is not yet available.
Program features
Discovery and motions.
Unless the court orders otherwise, the mediation conference does not delay other proceedings in the case, including completion of discovery, filing and hearing of motions, or any other matter that would delay the trial. The trial itself is not set during the time allotted for mediation. Extensions of time are granted only for good cause.
Party roles and sanctions.
The following people must attend the mediation session: all individual parties; for corporate parties, an individual with full settlement authority; for the government, a representative with full authority to negotiate on behalf of the agency and to recommend settlement; for an insured against whom a claim is made, a representative of the insurance carrier who is not outside counsel and who has full settlement authority. If a person fails to attend, the court may impose on the party or the party's principal, sanctions, including payment of attorney's fees, mediator's fees, and expenses incurred by those people attending the session.
Outcome.
Only the mediator may determine that the mediation session is at an impasse; the mediation cannot be terminated unilaterally by a party. If agreement is reached, the parties must put it in writing and sign it before the mediation session is adjourned. If an additional, more formal agreement is envisioned, the mediator assigns one of the parties' attorneys to prepare, within ten days of the session, the agreement and the papers to be filed with the court. The mediator must report to the court in writing within ten days of the close of the session whether agreement was reached but may not disclose the substance, tenor, or other confidential matters. If agreement is reached, the mediator's report must state whether the case will be concluded by a consent judgment or voluntary dismissal and must identify the people designated to file the necessary papers.
Confidentiality.
Mediation conferences are private. Others may attend only with permission of all parties and the mediator. All who attend must maintain the confidentiality of the mediation and may not rely on, introduce, or attempt to introduce any event, document, or communication into other proceedings. Confidential information given to the mediator in private caucuses during the mediation may not be disclosed to other parties, and such communications do not waive any attorney/client, work product, or other privilege. Except when ordered by the court in exceptional circumstances, the mediator may not be called as a witness or compelled by subpoena to divulge records or to testify in regard to the mediation.
Neutrals
Qualifications and training.
To be certified for the court's roster of mediators, an applicant must (1) be approved by at least one district judge, (2) be admitted to practice law in South Carolina or in the highest court of another state or the District of Columbia, (3) have practiced law for at least five years, (4) have received a law degree from a law school approved by the American Bar Association or the South Carolina Supreme Court, (5) be a member in good standing in each jurisdiction where he or she is admitted to practice law, (6) not currently be disbarred or suspended or subject to pending disciplinary proceedings, (7) not have been denied admission to the bar for character or ethical reasons for the past five years, (8) agree, if not a member of the South Carolina bar, to be subject to state and district court rules of conduct, (9) demonstrate familiarity with the statutes and rules governing mediation in South Carolina, (10) be of good moral character, (11) pay any administrative fees established by the district court, and (12) agree to provide mediation to indigents without pay. Applicants must also complete a mediation training program approved by the South Carolina Supreme Court, this court, or any equivalent training program.
Selection for case.
Unless otherwise ordered, the parties must select a mediator within twenty days of the date on which the court issues the order referring the case to mediation. If the parties cannot agree, the plaintiff's attorney must notify the court and request appointment of a mediator. The mediator may be on the court's roster or otherwise qualified by training or experience to mediate the case.
Disqualification.
The mediator must advise all parties of any circumstances bearing on possible bias, prejudice, or partiality. Any party may move for an order disqualifying the mediator. If the mediator is disqualified, the court enters an order appointing a new mediator.
Immunity.
Under the rules, the mediator is not liable to any person for any act or omission in connection with any mediation conducted under the court's rules.
Fees.
When the parties select the mediator, the parties and mediator determine the fee. When the court appoints the mediator, the mediator is paid at an hourly rate agreed to by the parties or set by the court. Unless otherwise agreed or ordered, the fee is shared equally by the parties. A party may move to be exempted from a fee because of indigence but must request exemption before the mediation conference.
Program administration
The clerk's office qualifies and maintains the court's roster of mediators. Each judge manages the assignment of mediators and the paperwork in his or her cases.
Excerpted from
ADR and Settlement in the Federal District Courts: A Sourcebook for Judges & Lawyers, 1996,
a publication of the Federal Judicial Center and CPR Institute for Dispute Resolution