Mar 19

Win-Win Solutions: How to Prepare for Family Court Mediation

Written by: Megan Dell


Navigating the complexities of Family Court can be daunting, but understanding how to prepare for family court mediation can greatly alleviate stress. Mediation in Family Court provides an opportunity for settlement discussions facilitated by a neutral third-party mediator. In South Carolina, it’s a mandatory step before a divorce or child custody case proceeds to trial, emphasizing its importance in resolving disputes amicably.

Female in mediation at family court

What is Mediation in Family Court?

Mediation in Family Court is an opportunity for the parties to a case to engage in settlement discussions with the assistance of a neutral third party mediator who is otherwise unrelated to the case.

In South Carolina, before any divorce case or child custody case can go to trial to be decided by a judge, the parties are required to participate in mandatory mediation. Even in a litigated divorce, the Family Court will require divorcing spouses to attempt to reach a divorce settlement agreement through at least three hours of mediation with a qualified mediator.

Who Will Be the Mediator?

Rule 4 of the South Carolina Rules of Alternative Dispute Resolution provides that an appropriate neutral is a person who is certified (as provided by Rule 19, SCADR) or who is not certified, but is believed by the parties to be qualified by training or experience to mediate the issues in the case.

The South Carolina Bar Association maintains a directory of lawyers who are certified mediators under Rule 19, SCADR.

Family court mandated mediation

Choosing A Qualified Mediator

In most cases, an attorney mediator serves as the neutral party facilitating the mediation process. These mediators often have experience as a divorce attorney or family law attorney. In cases with complex financial matters, an accountant may be agreed-upon to act as the mediator. And, as mediation has gained popularity, some retired judges have become divorce mediators.

One benefit of mediation is getting a “second opinion” about the strengths and weaknesses of your case. Yes, your divorce lawyer has likely shared some insight about your case, but learning what a neutral mediator of your own choosing finds most — or least — compelling can help clarify what your expectations for a fair outcome of your case should be.

For that reason, in Family Court cases, the mediation session is directed by a mediator the parties choose and agree to use.

The most important traits to look for when choosing a mediator are:

  1. Experience with the court process; and
  2. Knowledge of the relevant law for your case.

Experienced divorce lawyers help guide their clients to mediators with specific skills, backgrounds, and temperaments. For example, one spouse might benefit from a mediator who is straightforward and succinct about the case, or the circumstances might call for the insight a mediator who has experience as a Guardian ad Litem or has otherwise worked for the protection of children can offer.

Appointment of a Mediator

If you and the opposing party cannot agree on a neutral third party to serve as the mediator in your case, then there is a mechanism for the Family Court to appoint a mediator in your case. To request appointment of a certified mediator, you can file the necessary form with the Clerk of Court.

court appointed mediator helps someone navigate divorce

Where Does Mediation Occur?

In most family law cases, mediation occurs at the mediator’s office or via a virtual conference platform like Zoom. Some mediators do not have physical offices, and if the parties wish to attend mediation in person, then they will have to agree on a place for the private mediation to be held.

Post-COVID, at least one retired judge who exclusively serves as a divorce mediator will only conduct mediation sessions via virtual conference.

Zoom can be used to meet for a mediation interview

How Much Does Mediation Cost?

We are frequently asked to predict how much mediation will cost. How much mediation costs somewhat depends on whether the mediator was chosen by agreement or appointed by the Clerk of Court.

Rule 9, SCADR, provides that an appointed mediator is limited to charging $200 per hour for their services, but a mediator who is agreed-upon by the parties can be compensated at whatever rate everyone agrees to. Some mediators in the Charleston area charge as much as $400 per hour.

To fulfill the mandatory mediation requirement, the parties are required to attend a single mediation session of at least three hours. In addition to charging for the time spent mediating the case, the mediator usually charges for at least one hour of preparation time to review the file and identify the unresolved issues before the mediation begins.

However, if a divorce case can be resolved with a three-hour mediation, then it probably could have been resolved by negotiations between the lawyers without attending what is mediation in family court, at all. For that reason, most divorce mediations and child custody mediations are scheduled for a full day of mediation, which is around eight hours.

Depending on attorney client relationship, on the length of the mediation session and the mediator’s hourly rate, the mediator’s fees are likely to be between $1,000 and $4,000.

Lawyers and Experts at Divorce Mediation

Though some divorcing couples choose to mediate without the assistance of divorce lawyers, if both parties have counsel, then each spouse will have to pay their attorney for attendance at the mediation sessions. Additionally, in cases with more complex financial issues, then a financial expert like a forensic accountant may also attend the mediation conference.

what is family court mediation

Does the Guardian ad Litem Attend Mediation?

The duties and responsibilities of the Guardian ad Litem are detailed in the South Carolina Code, and there is a specific statute that addresses the Guardian ad Litem‘s participation in the mediation process.

S.C. Code Ann. Section 63-3-840 prohibits a Guardian ad Litem from mediating, attempting to mediate, a mediation agreement or acting as a mediator in a case in which they have been appointed. However, the Guardian ad Litem is permitted to participate in a mediation or a settlement conference with the consent of the parties.

Though this statute specifically requires the parties to consent to the Guardian ad Litem‘s attendance at mediation, if you are involved in a case in South Carolina, then you should be aware that in some areas of the State, it is expected that the Guardian ad Litem will attend, and participate in, the mediation process.

Who Has to Pay the Divorce Mediator?

Rule 9(c), SCADR, provides that the parties to the case are to equally divide the divorce settlement agreement and mediator’s fees unless some other arrangement is agreed upon. These fees must be paid at the conclusion of the mediation session; however, some divorce mediators prefer for each party to pay a deposit before the mediation session begins.

What If You Can’t Afford Mediation?

Rule 9(d), SCADR, addresses the possibility of one or both parties being unable to afford to pay a mediator during the whole divorce mediation process. By filing a petition for in forma pauperis status, you or other spouse can ask to be exempted from the responsibility to pay any portion of the divorce mediation cost.

In some areas of South Carolina, there are non-profit agencies with divorce mediators who offer no-cost or low-cost mediation. In the Charleston area, the Mediation and Meeting Center of Charleston offers divorce mediation cost and services on a sliding scale based on the parties meeting certain criteria.

schedule a consultation

How to Prepare for Divorce Mediation

First, though it can seem intimidating, you should remember that family law mediations are usually pretty casual. If your mediation is happening in-person, most mediators provide snacks throughout the day, and lunch if the mediation session is scheduled to last all day.

Second, every family law attorney has their own way of preparing for mediations. If you are concerned about financial situation orhow you can contribute to preparing for mediation, ask your attorney what help might be needed. But again, keep in mind that mediation is somewhat casual, and your divorce lawyer may not spend a significant amount of time specifically preparing for mediation.

Understand the Mediation Rules and Mediation Process

Since most people have never attended mediation for any reason, the entire divorce mediation processcan seem confusing. Learning what happens during mediation for divorce beforehand can help you feel more in control of your divorce mediation process.

what is family court mediation and who needs it?

How Does Divorce Mediation Work?

Most divorce mediators begin the mediation session with each party in a separate room. During the mediation conference, the mediator helps each party identify the strengths and weaknesses of their position in the case, and how their legal rights might be decided by a judge if the case were to proceed to a contested trial.

Then, the mediator helps each party formulate offers and counteroffers on the issues involved in the case. To communicate these offers and counteroffers from one party to the other, the mediator travels (either physically or virtually) between rooms to engage in discussions with each party and his or her divorce lawyer.

Ultimately, the mediator helps each party remember that resolving their Family Court case should be treated like a business transaction, instead of an emotional outlet or avenue to seek retribution.

What Does Divorce Mediator Do?

The mediator does not provide legal advice. The goal of divorce mediation is to reach a final settlement agreement on as many contested issues as possible. The mediator’s goal is to encourage the parties to a mediation to find common ground in reaching a final agreement. Usually, if a final agreement can be reached, neither party is completely happy with the result, but each party feels the terms of the resolution are better for them than the result that might be accomplished by going to trial.

Will You Have to See Your Spouse During Mediation?

One of the questions we are most asked about mediation is, “will I have to see my spouse?” The answer is NO. Most mediators in South Carolina divorce cases do not require the parties to ever be in the same room during the mediation conference.

Even for a mediation conducted via video conference, it is unlikely you and your spouse will ever be in the same [virtual] room.

Instead, one spouse will be in a room (either in person or virtually) with their divorce mediator and lawyer, and the other spouse will be in a different room (either in person or virtually) with their divorce lawyer. The divorce mediator may bring both divorce attorneys into the same room at various times, but that is often unnecessary.

Rarely, if a case is approaching an amicable resolution, then the parties may decide they feel comfortable to be in the same room, and if this happens, it is usually as details of a final settlement agreement that are being discussed.

Family court mediation cna make a tense situation much easier to handle.

What Will You Mediate?

Generally, you can expect the mediation process to address any issues raised in your case. To identify the issues involved, most lawyers review the pleadings in the case; specifically, the Complaint, Answer and Counterclaim, and Reply.

Mediation can address almost anything, including financial issues like identifying marital property, negotiating how much the property is worth, and dividing assets, including retirement accounts. Alimony, spousal support, and child support can be negotiated.

If child custody or child visitation is at issue in your case, then you will address how the children’s best interests can be served. If there are allegations of domestic violence, then the mediator will review the claims and defenses and help identify how such instances can be avoided in the post-divorce relationship.

Can Mediation Offers Be Used in Court?

Generally, no, mediation offers cannot be used in Court. The mediation process is intended to be confidential, and the mediator cannot be called to testify about what happened during the mediation conference.

However, if a case is not resolved at mediation, after the session has concluded, it is a common practice in South Carolina Family Court for each party to send a written version of the best offer made during the mediation process. Such offers are admissible under Rule 408, SCRE, when the Family Court judge considers whether to award either party attorney’s fees and costs.

Possible Outcomes of the Mediation Process

Participating in mediation can lead to several different outcomes:

  1. Successful mediation can lead to an amicable resolution, often documented as a parenting plan or marital settlement agreement. Any agreements reached at mediation are reviewed by a judge to determine whether the terms are a legally binding agreement. Then, with the agreement reviewed, the court approves the terms, and the agreement becomes part of a court order.
  2. Occasionally, multiple mediation sessions are needed to allow the parties involved in the dispute to explore potential outcomes. This is more common in high asset and/or high-conflict divorce cases.
  3. If mediation is not successful, then the parties to the case can continue to prepare their case for a contested trial in front of a Family Court judge.

Working with a mediator can help relieve stress when going through a divorce

How is Mediation Different from Collaborative Divorce?

Collaborative divorce is a completely non-adversarial divorce process available outside of traditional divorce litigation. It is an out of court process. The exchange of financial information between the parties is voluntary, and there are no court appearances prior to the parties reach an agreement on all issues involved in their case.

In a collaborative divorce process the lawyers involved have committed to represent clients who want to pursue only a collaborative, non-litigation, divorce process. Under a strict collaborative divorce model, if a divorcing couple is not able to reach a resolution, then each of them is required to hire a new divorce attorney before pursuing traditional divorce litigation.

In contrast, in South Carolina, attending mediation is built into the process for a litigated divorce. It is simply one step along the way. And if mediation does not help reach a marital settlement agreement, then the parties can simply continue their litigated divorce process.

Hire A Divorce Lawyer Before Mediation

For a divorce mediation in Charleston, SC, an attorney can assist in preparing for divorce mediation by reviewing assets, liabilities, and potential settlement options, offering legal advice, strategizing negotiation tactics, and providing emotional support, ensuring clients are well-equipped to articulate their needs and reach a favorable resolution.

Knowing how the mediation process works, picking a good mediator, and being open to different outcomes helps in reaching a marital settlement agreement that will work meet both parties’ needs.