South Carolina Lawyer
SC Lawyer, Jan. 2004, #1.
South Carolina court-annexed ADR: past, present and future
South Carolina LawyerJanuary 2004 South Carolina court-annexed ADR: past, present and futureBy Andrew M. WalshSouth Carolina adopted mandatory circuit and family court mediation and arbitration (collectively known as "alternative dispute resolution" or "ADR") as a pilot program almost seven years ago. In late 2002, the Supreme Court, recognizing the virtues of ADR, reconstituted the Commission on Alternative Dispute Resolution, resetting South Carolina on a course toward a uniform, statewide mandatory court-annexed ADR system, most likely within the next two years. If you litigate in the circuit or family courts of South Carolina, you have or will soon be encountering ADR. This article is a primer on court-annexed ADR in South Carolina: its history, current rules and likely future.
Past: prior ADR commissions and rules
Formal court-annexed ADR in South Carolina dates back to at least 1993, when the Supreme Court created a Joint Commission on Alternative Dispute Resolution built on the prior arbitration efforts of the Supreme Court Judicial Council and mediation efforts of the South Carolina Bar's ADR Section. Within two years, the Joint Commission proposed rules reflecting the collaborative efforts of more than 50 ADR pioneers. Following public comment, the Supreme Court adopted those ADR rules for certain "pilot counties," originally effective July 1, 1995, but ultimately March 15, 1996, with nominal seed money. In 1999, the ADR rules were expanded to Charleston, Horry and Lexington counties as written and to Greenville County on a modified basis. In 2000, Anderson County was added on the same modified basis. In 2001, Charleston County withdrew from the program, but the rules remain in effect in the circuit and family courts of Anderson, Greenville, Florence, Horry, Lexington and Richland counties.
The Judicial Department's Office of Court Administration initially administered the Joint Commission's work, including certification of mediators and arbitrators (collectively, "neutrals"). Effective September 1, 2002, the Supreme Court adopted Rule 422, SCACR, creating a new Commission on Alternative Dispute Resolution and Board of Arbitrator and Mediator Certification, both administered by and housed at the South Carolina Bar. Chief Justice Jean Toal envisions one statewide system of mandatory ADR for circuit and family court, and has given the Commission the task of designing such a system. The primary purpose of the court-annexed program is to increase public satisfaction with the judicial system. Cost savings and docket control are secondary considerations.
Present: A primer on the current ADR rules
While sometimes denoted "the ADR Rules," regulation of ADR in South Carolina courts derives from four primary sources:
Rule 422, SCACR:
This is the enabling rule creating the Commission on ADR and detailing its powers, composition and obligations. Under Rule 422, the Commission consists of 19 members appointed by the Court: six judges, six attorneys, two public members, a pilot county court clerk, the Director of Court Administration, two legislators and the Chair of the Bar's ADR Section. The Commission's charges are broad and include coordinating all civil and family court ADR efforts, collecting and analyzing ADR data, promoting ADR education, monitoring court ADR elsewhere and nominating commissioners to the Board of Arbitrator and Mediator Certification which in turn certifies neutrals and approves training programs.
ADR Commission regulations:
Attached as an appendix to Rule 422 are the Commission's regulations covering mostly internal procedures: membership, committees, staff, meetings, quorums and voting. However, it also includes procedures for certification, recertification and decertification of mediators and arbitrators and the approval process for training programs. Highlights include: * applications must be typed, signed and submitted with payment ($250), with a right of appeal to the Commission; * neutrals must be recertified annually ($50), now by December 31 of each year;
The renewal date was moved only within the last few months to correspond with the Bar's calendar. Reminders are mailed to neutrals in November of each year, currently separate from the Bar's dues notices; * the Board must maintain and distribute to clerks a roster of certified neutrals; A copy is available to the public at www.scbar.org/adr; * the Board must process complaints of misconduct which can lead to discipline and decertification, subject to appeal and reinstatement procedures; and * training program approvals, costing $25 per annual application, are subject to a "clear and convincing" standard, with a right of appeal to the Supreme Court.
Circuit Court ADR Rules:
Originally, there were two sets of Circuit Court ADR Rules: one for mediations and another for arbitrations. Effective July 1, 2000, they were merged. For a summary of those changes and differences, see Robert W. Hassold Jr., Circuit Court ADR Rules: Changes and Differences, South Carolina Lawyer, November/December 2000, at 23.