Mediation Reboot The Future of Alternative Dispute Resolution in South Carolina, 1121 SCBJ, SC Lawyer, November 2021, #36
| Position | Vol. 33 Issue 3 Pg. 36 |
By Sean Keefer
The past year has had an undeniable impact on virtually every aspect of society. This has been particularly true for the legal system, very much including the process of mediation in the South Carolina courts.
Even after more than a year, the South Carolina courts are only slowly beginning to open to in-per-son hearings. During the height of the COVID-19 pandemic, mediation—long a mainstay of dispute resolution—became the main path to settlement because of the lack of access to courts, primarily in the circuit and family courts of South Carolina. At the time of the drafting of this article, there is no statewide uniformity as to holding in-per-son final hearings. Additionally, all courts are experiencing significant backlogs that makes mediation the most expeditious manner to resolve cases.
When courts closed, virtual mediation nearly immediately became a topic of discussion and went into use. However, the directives and social distancing precautions that were a reality for more than a year, an immediate conflict arose with the then existing South Carolina Alternative Dispute Resolution (“SCADR”) rules related to required attendance at mediations when virtual mediation was discussed. Historically, the SCADR rules were very cut and dry on the issue of participation/attendance in mediations. The then appliable SCADR Rule 6(b) read, in part, as follows: “The following persons shall physically attend a mediation settlement conference unless otherwise agreed to by the mediator and all parties or as ordered and approved by the Chief Judge for Administrative Purposes of the circuit.”
Essentially,
unless the parties agreed or there was an order of the court,
if there was a named party, they, their attorney, if any, and
the mediator had to attend mediation in person.[1] There were
no provisions for virtual attendance absent an agreement or
order of the Court.
When South Carolina courts closed in March 2020, attorneys, mediators and parties—in fact the entire legal system in South Carolina (and beyond)—quickly gained widespread awareness of video conferencing platforms like Zoom as an alternative for in-person mediations. However, the conflict with the then current Rule 6(b) of the SCADR rules, as set out above, still existed. Fortunately, this conflict was short lived.
On March 19, 2020, the South Carolina Supreme Court issued Order 2020-03-19-01 that, in summary, allowed parties to attend mediation remotely/virtually.
Initially there was pushback as to the use of online dispute resolution (ODR) related to privacy, potential access to private information, the potential for unauthorized access and concerns related to ODR process in total.
While none of the initial concerns were completely misplaced—after all, the reality of ODR happened in an incredibly expedited fashion—what mediators and attorneys quickly realized was, while ODR was different, it worked. It became apparent there were limited security concerns, private data was secure, and unauthorized...
To continue reading
Request your trial