As was noted in a previous post (https://bannisterandwyatt.com/family-law/keeping-your-costs-down-in-divorce/), the best way to lower the total cost of your case is to reach a settlement as quickly as possible. Typically, a settlement is reached during mediation – But what is mediation?
Mediation is a process where parties in a case seek to settle their differences prior to a trial. In South Carolina, mediation is mandatory for nearly all civil cases, and the family court will not allow the parties to proceed to a final hearing before a mediator has reported that the case cannot be settled out of court. Mandatory mediation has vastly reduced the number of contested trials in South Carolina.
A mediator is an individual, often an attorney, who is certified by the South Carolina Bar in dispute resolution. Generally, mediation is held at the mediator’s office or another third-party location. Due to the high emotions involved in family court cases, the parties usually remain in separate rooms with their attorneys while the mediator exchanges settlement terms and helps the parties reach an agreement. This arrangement allows the parties to focus on the relevant issues rather than potential personal conflicts.
There are three periods when mediation may occur:
- The parties can mediate before the case is filed. This option has the advantage of avoiding potentially costly litigation, but it often has a disadvantage that one of the parties will not believe there’s any reason to acquiesce to a settlement proposal without the pressure of pending litigation.
- A second option is to mediate early in the litigation process. Again, the earlier the parties can mediate and reach a settlement, the cheaper it will be to litigate the case. However, in many cases the parties do not have the necessary information to reach a full settlement until later in the litigation process.
- The usual time to litigate is immediately before trial. Both parties will have discovery responses from the other party and should have a full understanding of the issues in their case prior to heading into mediation. This allows both parties to reach a full settlement with knowledge of the possible outcomes at trial.
Besides the economic benefit of avoiding trial, there is another major benefit of settling your case at mediation. At trial, judges tend to follow a framework for their orders. Some of this framework is based on statutory and case law that controls what the court is allowed to do. Other parts of the framework are based on standards that have been developed in preceding cases or the judge’s personal view of the best manner to resolve the issues based on other cases. However, because the parties are in complete control of the outcome of their case at mediation, the settlement terms can be more closely tailored to the parties’ individual needs and desires, as well as the needs of their children. It simply makes sense that people who have been married, had children together, or have known each other for many years are in a better position to determine what is in their best interests and their children’s best interests better than a judge who has heard only a few days of testimony from the parties.
Mediation is a great tool that can provide great economic and other benefits for your case if you have the right team in place to make use of it. It is important to be well prepared for mediation and to have an attorney by your side to assist you in developing creative and innovative solutions to the contested issues in your case.