Family mediation is a confidential decision-making process in which a neutral facilitator assists parties in reaching informed settlement of questions arising from separation, divorce, or other family conflicts. Although a judge may order parties to try mediation, they are not required to enter into any agreements. Any agreements are entered into voluntarily by the parties themselves, and no rights are waived. If the parties can't agree in mediation, they will end up in court, where a judge will decide their disputes.
The Family Court requires mediation of most contested custody and visitation issues in pilot counties (Florence and Richland) in cases filed after March 15, 1996. Issues which can be addressed voluntarily in family mediation include parenting, child support and alimony, the division of assets and allocation of debt, pre-nuptial agreements, post-decree custody questions, and grandparent visitation.
Parties usually meet with a mediator in a series of conferences without attorneys present. The mediator may also meet separately with each party. Occasionally, attorneys, therapists, or accountants meet with the parties and the mediator, if invited by the parties. Children or other family members including stepparents or grandparents may also participate for some or all mediation sessions. Everyone who participates should sign and be bound by the confidentiality agreement of the parties.
The mediator should encourage each party to consult with an attorney and, at a minimum, to have an attorney review any agreement before the agreement is signed by the parties and/or approved by the Family Court. Attorneys must prepare documents for court approval and for divorce proceedings and must participate in court hearings. The attorney's role will be determined by the attorney and the client, depending upon the services needed and requested.
The parties sign a documents called an "Agreement to Mediate" which provides for confidentiality, the agreement of both parties to produce records requested by the mediator, payment of the mediator's fees, and provisions to protect the mediator from subpoena or other involvement in litigation.
A mediator facilitates discussion of issues but does not make decisions. In divorce mediation, the mediator will have a general understanding of the history and breakdown of the marriage, but will not address questions of fault. Although the mediator has an obligation to ensure that a fair decision-making process takes place, the mediator cannot ensure that the terms of an agreement are fair. The mediator should terminate mediation if the parties cannot have a reasonably balanced discussion for any reason.
The mediator will focus discussion on planning for the future and will try to identify common interests of the parties. With the mediator parents discuss various options and decide what plans will be best for their children and for them as parents. Using financial information provided by the parties, an information base is developed to determine appropriate arrangements for support, the division of property and planning for future family needs, such as college education and retirement.
The mediator may suggest that certain questions be referred to an accountant, an appraiser, a therapist or another professional consultant-- such as the tax impact of selling a home, the value of property or planning for a handicapped child.
In South Carolina, a family mediator must be a licensed attorney or mental health professional in good standing and must complete a 40-hour family mediation course to appear on a court-certified list of mediators. Mediation training, however, is available to anyone, and parties may select a mediator who is neither an attorney nor a mental health professional. Ethical standards prevent an attorney mediator from providing legal advice to mediation clients and prevent a mental health professional from providing therapy to mediation clients. Divorce mediators receive instruction in family law and will discuss principles of family law with clients in a general fashion.
If parenting and financial issues are decided in mediation, parties may meet with a mediator from four to ten times for about two hours each session. If only custody and visitation issues are mediated, two to four sessions will probably suffice. The complexity of issues and work done by the parties and their attorneys outside mediation will affect the time needed.
Mediators usually charge hourly fees which are shared by the parties. Arrangements for payment should be made in advance between the parties and with the mediator. Negotiation in mediation is usually less expensive than negotiation through attorneys and requires more time and work from parties.
Mediation is not appropriate if the parties cannot speak honestly and freely to each other, with the mediator's assistance, because of the emotional instability, intimidation, or lack of ability to understand the process of either party. A history of physical abuse or substance abuse during the marriage should be disclosed to the mediator and may cause the parties or the mediator to decide that mediation will not work well.
The children who adjust best to divorce are those who have substantial continuing contact with both parents and whose parents provide a healthy model for resolving conflicts. Mediation promotes these values and allows for the discussion of family concerns and creative settlement alternatives, which may not be considered by attorneys and in court decisions. Research indicates that mediated settlements tend to result in more joint (shared) custody plans.
Mediation is private, practical and gives clients control of the expenses and the timing of their negotiations. Mediated agreements help preserve relationships and have somewhat better "staying power" than court orders or traditionally negotiated settlements - people are more likely to abide by terms they suggested or agreed to.