Mediation- What is it? Mediation is a form of alternative dispute resolution where a neutral party stimulates candid discussion between two or more parties to conclude a matter satisfactorily for all parties involved. There are many definitions to it- this is just mine.
It is important to distinguish mediation from arbitration. In arbitration, the arbiter decides the solution to the case and who is at fault. The mediator does not decide the case; he or she helps the parties to work through their issues for them to decide on a solution themselves.
Mediation is popular for the judges because it reduces their long backlog of cases on their dockets. Mediation is popular with lawyers because they can work through a case with more efficiency and less anxiety. Mediation is very popular with clients because they get their say and have a larger amount of control in the resolution of their cases rather than the uncertainty of a trial.
In my state of practice, South Carolina, mediation is mandatory for most cases in six counties, including Richland, the county with Columbia. I expect it to be mandatory in the whole state soon.
Mediation is very helpful in divorce and probate litigation. Mediation has been used in South Carolina for sometime for divorces and a pilot program is being started for probate cases. What do these two types of disputes have in common? Hurt feelings. Both parties are hurt in a divorce dispute and they must work through their emotional issues before they can intelligently engage legal issues. A properly-trained mediator can identify the lines of communication a party is receptive to and work to nurture that line of communication. People do not know how to talk to each other. In a conflict solution, we always have the “fight or flight” complex. The mediator being properly trained, teaches the lawyers and parties how to talk to each other to settle a case.
I know that mediation will be good for probate cases as well. I have a client who lost his father, brother, then mother in a few short years. He still feels animosity toward his brother for being a “loser” and keeping him from selling his father's house. Much as he does not want to, he feels animosity toward his mother for re-marrying and not following his father's wishes as he saw them. Finally, he has a full wrath for the stepfather who he thinks is trying to “screw him over” and take his family's money that is his. If my client had a chance to look his stepfather in the eye and tell him what he thinks, he could work through his emotional issues. Then, he could get through with the legal issues to end his family's estates and get on with the rest of his life. Mediation may be a reasonable way to resolve the issues of his mother's estate which has more of the assets. I know that our probate judge likes mediation since she attended the most recent mediation training in South Carolina.
A mediator is a neutral. He renders no opinions on the merits of the case. He just does his best to get the parties to review the issues of the case and suggest as many ways as possible to find a solution that the parties can agree. Discussion between just the mediator and one party are confidential and cannot be shared with the other party or the court. This encourages candid conversation about the issues of a case.
In order for an attorney in South Carolina to become a certified civil court mediator, he or she must go through a grueling 5 day, 40 hour course. We applied the techniques that our teachers imparted to us in simulations. We then critiqued each other. The course was by far the best Continuing Legal Education class I took. It will help for negotiation (personal and professional) and was a great lesson in human nature.
An article on mediation could be hundreds and hundred of pages. Much like law school, I am giving you the “nutshell.” Mediation cannot solve every dispute. However, more mediation in our judicial process will assist our judicial system and parties' satisfaction with it.
