FAMILY MEDIATION—HOW DOES IT WORK?

  What is Family Mediation?

Family mediation is a confidential decision-making process in which a neutral facilitator assists parties in reaching informed settlement of questions arising from separation, divorce, or other family legal conflicts. Any decisions are made by the parties themselves, and no legal rights are waived.

What issues can be mediated?

The Family Court mandates mediation of all contested divorce cases in The State of South Carolina. Issues which can be addressed in mediation include parenting, child support and alimony, the division of assets and allocation of debt, prenuptial agreements, post-decree custody questions and other family legal issues.

Who participates?

Parties usually meet with a mediator in a series of conferences. These conferences can take place with or without attorneys present. I usually do mediations without attorneys present. Other people can participate only if everyone agrees to their presence. Everyone who participates is bound by the confidentiality rules of the mediation process.

What to bring to your Mediation Sessions:

It is helpful but not required that you bring W-2 forms, tax records, and pay stubs. It is helpful to bring a list of assets and debts, including 401K or other retirement plans; appraised value of your home and how much is owed on the mortgage, and credit card balances. Costs for day care and health insurance premiums you pay for your children (not including the parents) are necessary for calculating Child Support.

What role do attorneys play in Family Mediation?

The mediator encourages each party to consult with an attorney, and, at a minimum, to have an attorney review any agreement before the agreement is signed by the parties and submitted to the Family Court for approval. Attorneys may prepare documents and participate in court hearings. The attorney’s role will be determined by the attorney and the client.

What is included in the Agreement to Mediate?

The parties sign an Agreement to Mediate which provides for the confidentiality of the process, the agreement of both parties to produce records requested by the mediatory, payment of the mediator’s fees, and protection of the mediator from subpoena or other involvement in litigation.

What is the mediator’s role?

A mediator facilitates discussion of issues but does not make decisions about the settlement. In divorce mediation, the mediator will have a limited understanding of the history and breakdown of the marriage but will not assign questions of fault. Although the mediator has an obligation to ensure that a fair decision-making process takes place, the mediator cannot ensure that the terms of an Agreement are fair. The mediator will see the parties in separate rooms or terminate mediation if the parties cannot have a reasonably balanced discussion.

The mediator will focus discussion on planning for the future and will try to identify common interests of the parties. With the mediator, parents discuss various options and decide what plans will be best for their children and for them as parents. Using financial information provided by the parties, an information base is developed to determine appropriate arrangements for child support, the division of property, and planning for future family needs, such as college education and retirement.

The mediator may suggest that certain questions be referred to an accountant, an appraiser, a therapist, or another professional consultant—such as the tax impact of selling a home, the value of property, or planning for a child with a disability.

What training is required to be a mediator?

In South Carolina a family mediator must be a licensed attorney or mental health professional in good standing and must complete a 40-hour family mediation course to appear on a court-certified list of mediators. Mediation training, however, is available to anyone, and parties may select a mediator who is neither an attorney nor a mental health professional. Ethical standards prevent an attorney mediator from providing legal advice to mediation clients and prevent a mental health professional from providing therapy to mediation clients. Divorce mediators receive instruction in family law and will discuss principles of family law with clients in a general fashion.

How long does mediation take?

The complexity of issues and work done by the parties and their attorneys outside mediation will affect the time needed for mediation. Mediation sessions are generally scheduled in two-hour blocks of time to allow for full discussion of complex issues. Depending on the issues and the level of agreement by the parties, mediation can generally be completed in less than four two-hour sessions.

How much does mediation cost?

Mediators usually charge hourly fees which are shared by the parties. However, I charge a flat rate of $1500 for each mediation to be paid in full at the onset of the mediation process. This rate includes up to six hours of mediation and up to four drafts of written Agreements. Arrangements for payment should be made in advance between the parties and with the mediator. Negotiation in mediation is usually significantly less expensive than negotiations through attorneys. Mediation sometimes requires more time and work from the parties themselves.

When is mediation not appropriate?

Mediation is not appropriate if the parties cannot speak honestly and freely to each other, with the mediator’s assistance, because of emotional instability, intimidation, or lack of ability to understand the process. A history of physical abuse or substance abuse during the marriage should be disclosed to the mediator prior to beginning the process.

What are the benefits of mediation?

The children who adjust best to divorce are those who have substantial continuing contact with both parents and whose parents provide a healthy model for resolving conflicts. Mediation promotes these values and allows the discussion of family concerns and creative settlement alternatives which may not be considered by attorneys and in court decisions. Research indicates that the terms of mediated settlements are similar to court orders and attorney-negotiated agreements, although there tend to be more joint custody plans and more detailed parenting plans in mediated agreements.

Mediation is private and practical and gives clients control of the expenses and the timing of their negotiations. Mediated agreements help preserve relationships between parties and have somewhat better “staying power” than court-ordered structures or traditionally negotiated settlements. Attorneys provide a safety net for clients, and no legal rights are waived by participation in mediation.

Contact: Sarah B. McGuire at (864) 918-3092 or through the Contact Request form at the top of the page.