Vol. 7, No. 6, Pg. 26. Mediation; Changing the Way We Think About Disputes.

• Author: By Bradford W. Wyche

South Carolina Lawyer

1996.

Vol. 7, No. 6, Pg. 26.

Mediation; Changing the Way We Think About Disputes

26Mediation; Changing the Way We Think About DisputesBy Bradford W. WycheSeveral years ago, I was waiting with a client for her deposition in an automobile accident case. For the lawyers, it was just another "wreck case," but for my client, the entire experience-being sued, being referred to as "reckless, willful and wanton," and now being deposed-was, to say the least, exceedingly unpleasant.

The office of the plaintiff's lawyer, where the deposition would be taken, was in one of those stately former residences on Pettigru Street in Greenville. It was a cold winter day, and we were sitting in what used to be the home's living room, warming ourselves before a crackling fire. My client turned to me with a thoughtful look and said:

You know, it's a shame we couldn't all just get together in this room, put on some nice music, keep this fire going, give everybody a kitty cat to hold and pat, and just talk about this case. I bet we could work it out.

Laughing, I told her that seemed like a great idea but unfortunately, litigation was the only way to resolve disputes like this.

But that was before I knew better. Before I knew that what my client had described was essentially mediation (without the music and the cats . . . but who knows?). Before mediation had proven itself in South Carolina through a series of successful "settlement weeks." Before the offering of several 40-hour training courses that have now produced nearly 800 certified mediators in our state. And before the South Carolina Supreme Court mandated pilot mediation and non-binding arbitration programs in Richland and Florence counties.

Mediation has the potential to cause fundamental, if not revolutionary, changes in the way society approaches the problem of resolving disputes. In fact, as the benefits of mediation become widely recognized, it may well be that in the next century, the first impulse to a dispute will no longer be "Sue!," but rather "Mediate!"

How It Works

The process of mediation is ingeniously simple. An informal, confidential conference takes place among a trained mediator and all the parties to the dispute and their respective lawyers. This conference is scheduled at the convenience of the participants, and all statements made during the mediation are off the record. In the absence of judges, jurors and court reporters, discussions are open and candid, in contrast to the guarded, unnatural dialogue of a courtroom.

In a trial or arbitration, the judge, jury or arbitrator makes the decision for the...