South Carolina Lawyer
SC Lawyer, July 2008, #4.
Probate Court Mediation Pilot Program
South Carolina Lawyer July 2008 Probate Court Mediation Pilot Program By Roger Jellenik Introduction
Six months ago you got this probate case, and your client, who had been caring for her ill father and mother without any help for six years, told you that suddenly her siblings refused to have anything to do with her. And, to add insult to injury, when she got back from doing the weekly food shopping, her father and mother were gone, and none of her siblings would tell her where they went. When you looked around for the missing parents, you found them in a nursing home in another county far removed from the county of their former residence where a combined guardianship/conservatorship petition had been filed. As if all that were not enough, your client's parents' assets, which were substantial, seem to have mysteriously vanished. You get along well with opposing counsel who represents the sister, who petitioned the probate court to become guardian and conservator for the parents, but her client will not agree to negotiate anything because she does not trust your client. So, it looks as if, once again, you're in for a "gunfight at the OK Corral" or, if you prefer more subtle phrasing, another hearing in probate court replete with accusations, suspicions, uncertainties, gnashing of teeth and tears. Of course, the only folks who love this excitement more than lawyers and their clients are probate judges. But wait! Might there be an alternative?
Whatever the situation was before, there is most definitely an alternative now. On August 23, 2007, the Supreme Court of South Carolina issued an Administrative Order adopting a pilot program for mediation in our state's probate courts. Re: Probate Court Pilot Mediation Program, S.C. Sup. Ct. Order dated Aug. 23, 2007 (Shearouse Adv. Sh., No. 32), available at www.judicial.state.sc.us/whatsnew/displaywhatsnew.cfm?indexID=402. This initiative enjoyed broad support during its development from the S.C. Commission on Alternative Dispute Resolution; S.C. Probate Judges Association; and S.C. Bar Probate, Estate Planning and Trust Section Council, Alternative Dispute Resolution Section Council, Elder Law Committee and House of Delegates. Built into the structure of this initiative is a set of procedures intended to promote consistency and predictability and a set of forms to promote communication of feedback from probate courts and mediation participants. This article is intended to give readers some sense of the new program's goals, rules and procedures, while at the same time highlighting some issues that may need to be dealt with in the future. This pilot has been characterized by one commentator as "permissive," and, indeed, it is. As with all pilots, this one presents both opportunities and challenges.
This pilot program has been designed to make participation optional. Since there are no geographic or other restrictions that would prohibit them from doing so...