Individuals approaching divorce in South Carolina can typically expect to go through the divorce mediation process, as the South Carolina Family Courts have established expectations for divorcing couples with respect to mediation as a pathway to streamlining the court proceedings associated with divorce. Understanding what the divorce mediation process looks like can help to put your mind at ease and prepare you to navigate the process effectively. At King Law Offices, we have extensive experience supporting individuals throughout their divorce mediation experience and into the courtroom, as needed. Schedule a personalized consultation today by calling (888) 748-KING to speak with a member of our team.
ADR Basics
Divorce mediation is a form of alternative dispute resolution (ADR). ADR is an “umbrella term” used for several dispute resolution methods aimed at settling disagreements outside the court system; the methods are all “alternatives” to legal proceedings before a judge.
Types of ADR and Their Uses
Besides mediation, two other very common methods of alternative dispute resolution are arbitration and early neutral evaluation (ENE). No form of ADR is exclusive to divorce, but mediation and neutral third party evaluation are both frequently used in addressing disagreements that might otherwise need adjudication through the SC Family Courts. A breakdown of these three widely used forms of ADR may help to clarify the factors that lead mediation to be especially common in divorce cases.
Arbitration
In arbitration, the parties to a dispute make their cases to a neutral third party, very much as they would to the judge presiding over their case in a South Carolina courtroom. An arbitrator is not a judge, however, and although trained arbitrators often command fees commensurate with their substantial expertise, having a disagreement decided through arbitration can often save both parties significant time and expense over formal court proceedings.
An arbitrator’s decision is typically considered final unless the agreement is specifically for non-binding arbitration. In most ADR scenarios, the parties also waive their rights to pursue a resolution in court as part of their initial agreement to enter into arbitration. The arbitration process, unlike a court case, does not allow for an appeal, which perhaps helps to explain why this particular ADR method sees more use in resolving contractual disputes than in arranging family matters; relatively few people are willing to trust their family’s future to a third party, even a trained and trusted one, without the possibility of an appeal should the outcome prove untenable.
Mediation
Mediation is perhaps the most popular ADR method in family law cases, including not just divorce but questions concerning child custody arrangements and modifications of child support or alimony (separate maintenance). Often a South Carolina Family Court will order the parties to attend mediation prior to scheduling a court hearing for their case, as reaching an agreement in mediation can significantly reduce the length and complexity of court proceedings, even though a Family Court judge will in most cases still need to sign their approval of the agreement reached between the parties.
Like other commonly-used forms of ADR, mediation is characterized by the services of a neutral third party. Whereas the role of the third party in arbitration is to hear both sides and issue a decision – similar to the function of the judge in a South Carolina court – in mediation the third party serves as a facilitator for discussions between the parties. The role of a divorce mediator in particular is to develop an understanding of both parties’ positions with respect to key issues on which they have been unable to reach agreement, and then to support the divorcing spouses in seeking common ground so that they can negotiate terms acceptable to all involved, outside the courtroom. Mediation can have substantial advantages even when the parties are not able to reach consensus on all points of contention, as generally speaking the more issues the former partners are able to resolve without a judge’s intervention the shorter and therefore cheaper the eventual court proceedings are likely to be. A South Carolina family law attorney with King Law Offices may be able to support you in negotiating effectively throughout the divorce mediation process.
Early Neutral Evaluation
Early neutral evaluation is an interesting method in that it can be used in combination with either a court case or another method of ADR. Under South Carolina ADR Rule 14, in ENE, the parties submit their matter to a neutral third-party. In this respect ENE is similar to both arbitration and mediation. However, in the ENE process, the neutral third party does not issue a decision, as an arbitrator would do, or work with the two parties to look for common ground that might enable them to resolve some or all of their disagreements outside the courtroom. Rather, the evaluator listens to both sides, reviews the evidence each party wishes to present in support of their position, and then provides a neutral, informed opinion evaluation of the strengths and weaknesses of each, helping the parties to form a clear picture of the challenges they will likely face heading into either another ADR method or court proceedings.
From a certain perspective, ENE may not look like “alternative dispute resolution,” as an evaluation of the two sides’ arguments does not inherently resolve any disagreement between their positions. In practical terms, however, many individuals find that the ENE process gives them clarity about their own arguments that they may previously have lacked; after seeing where their demands are considered unreasonable, or their evidence considered thin, these parties may be more willing to negotiate effectively and come to the bargaining table with more realistic expectations. Often the “reality check” provided by early neutral evaluation can serve as the catalyst for more productive discussions that enable the parties to settle many, if not all, of the points on which they have previously been unable to reach consensus.
The Divorce Mediation Process in South Carolina
The South Carolina Judicial Branch explains that most family law matters, including the various arrangements typically involved in a divorce, are subject to court-ordered mediation under most circumstances, with a few exemptions. The South Carolina Family Courts do not require ADR for cases initiated by the state’s Department of Social Services. Requests for temporary relief and most cases that have already been subject to at least one ADR conference are also typically exempt.
South Carolina Divorce Mediation Timing: Fault-Based Divorces
Regardless of your grounds for filing for divorce, in most cases you and your soon-to-be ex will be required to schedule and participate in a court-ordered mediation “settlement conference,” prior to moving forward with the adjudication of any contested issues in your divorce case, pursuant to South Carolina ADR Rule 5(g), which indicates that family court cases will not be scheduled for trial until the parties have filed proof of their participation in ADR. The process will be essentially the same if your estranged spouse is the one who files for divorce: After you have been served with the necessary papers and submitted your response to the court, in most scenarios you can expect to be ordered to attend mediation for at least three hours or until you and your spouse reach an agreement, whichever comes sooner. If the parties in a family matter are subject to Rule 3 and therefore ordered to mediation under Rule 5, the guidelines under which the South Carolina court will appoint a mediator are laid out under ADR Rule 4.
South Carolina Divorce Mediation Timing: No-Fault Divorces
South Carolina’s only provision for “no-fault” divorce is made under S.C. Code § 20-3-10(5). Because the text of the statute requires the spouses to have been living separately for at least a year at the time of the divorce filing, spouses pursuing a no-fault divorce in South Carolina will likely have had considerable time to address their various points of contention in reaching a divorce settlement.
In many cases, the spouses who find themselves filing for divorce under § 20-30-10(5) reach their determination that a divorce will be the most appropriate solution to their situation well in advance of the one-year mark, and so in some situations it may make sense to pursue mediation together before either of you files a complaint for divorce with the SC Family Court in your area. In addition to the fact that approaching mediation in advance can enable you to submit your required Proof of ADR early in the divorce process, the hope is always that mediation will facilitate the resolution of some or all of your disagreements regarding the eventual divorce settlement outside of court, thereby saving you and your spouse both time and money.
Additional Considerations for Timing in the Divorce Mediation Process
The divorce mediation process, like most endeavors involving interpersonal relationships, does not always move in a straightforward linear fashion. South Carolina ADR Rule 3 specifically provides that the parties to a family law matter may, on their own initiative, select a neutral of their own choice and pursue divorce mediation or another method of ADR at any time. If at any time you and your former partner reach an agreement through ADR, it is your responsibility to submit the agreement for the court’s approval in order to move forward.
Seek a Legal Perspective From an Experienced South Carolina Family Law Attorney
Most divorcing couples in South Carolina will need to participate in the divorce mediation process. There can be a few pathways to alternative dispute resolution for family law matters within the state. To gain the perspective of a family law attorney experienced in South Carolina divorce, call (888) 748-KING today and schedule a consultation with a member of the King Law Offices team at any of our convenient locations throughout the state.