By M. Dawes Cooke, Jr., with John Fletcher

Friday, May 3, 2013 1:36 PM EDT

This March 14 the South Carolina Supreme Court issued an order that will directly impact all civil lawsuits filed in the Charleston County Court of Common Pleas and, hopefully, help parties resolve their disputes without the expense of trial. With respect to all lawsuits filed on or after June 1, Charleston County will join a growing number of counties where all lawsuits are subject to mandatory Alternative Dispute Resolution (ADR) procedures. Nearby Beaufort, Berkeley, Dorchester, Georgetown and Horry counties are also subject to this requirement. The S.C. mandatory ADR requirements are detailed in a set of rules governing how the ADR is to be administered.

These ADR procedures will consist of mediation and arbitration. Mediation is a process where the parties use a neutral third party (the “mediator”) to assist them in reaching a settlement of their dispute. While mediation entails examination of the nature of the dispute, it does not share the characteristics of a trial, such as calling witnesses or introducing evidence. On the other hand, arbitration is a dispute resolution technique where the parties refer their dispute, outside of the court, to one or a panel of arbitrators. The parties may agree to non-binding arbitration or agree to be bound by the arbitrator’s decision. The arbitrator will consider evidence and testimony and render a decision on the merits of the case.

As between the two, perhaps the more common ADR tool that parties use is mediation, because it can assist the parties in amicably resolving their dispute while maintaining the right to a trial if settlement does not occur. Mediation is relatively inexpensive and permits the parties to discuss the merits of their case with a neutral party, who can objectively point out strengths and weaknesses in both sides of the case. To foster the open discussion of the case, communications made at the mediation by the parties are confidential and may not be used at trial. The mediator is trained in dispute resolution techniques. While it has not recently been mandatory in Charleston County, attorneys and parties have frequently utilized mediation as a tool to resolve lawsuits filed in the Court of Common Pleas.

Although mediation has been a common part of litigation in Charleston County, its role will grow significantly with the implementation of the Supreme Court’s recent order. The crux of the new ADR requirement in Charleston County is that the parties will be required to participate in ADR in nearly all civil litigation commenced in Charleston County, with a few exceptions such as mortgage foreclosures and government forfeiture proceedings. The “default” option is mediation, though the parties are free to elect arbitration as their chosen ADR tool. This arbitration or mediation must generally occur within 300 days after the filing of the lawsuit.

The case cannot be placed on a trial list until proof of participation in either arbitration or mediation is filed with the court. However, the mediation or arbitration shall not delay other aspects of the lawsuit from moving forward, such as discovery or the filing of motions. Therefore, the parties will still be able to prepare their cases for trial. The parties will be required to file proof of compliance with the ADR requirement and face sanctions from the court if they fail to do so.

Individuals are qualified to serve as mediators or arbitrators in the mandatory ADR program if they are either certified by the Supreme Court of South Carolina or, in the opinion of the parties, possess the qualifications from training or experience to serve in that capacity. The parties are free to select their own neutral. However, if 210 days into the case they have not filed a proof of ADR, the clerk of court will appoint a primary and secondary mediator from a rotating list of certified mediators willing to take on such matters.

With the increase in counties requiring mediation or arbitration as a part of litigation, a great need is arising for qualified, effective neutrals who can either facilitate a settlement or efficiently conduct an arbitration. Serving as a neutral is a unique aspect of the practice of law that requires a certain temperament and good judgment. A good mediator can be the difference between a successful mediation that resolves a contentious dispute and a wasted opportunity to avoid the great expense of trial.

A successful ADR also requires proper facilities that are unique to those efforts. The nature of mediation requires a conference room that can accommodate all the parties and their attorneys and “break out rooms” where the parties can discuss the case among themselves and in private caucus with the mediator. Moreover, in the modern age of litigation, facilities equipped with current communication technology is invaluable. Having the ability to participate in teleconferences or make video presentations can greatly assist the ADR process.

Like other law firms in the city, our firm is ready to facilitate the resolution of cases under the new mandatory ADR procedures. The advent of mandatory ADR in Charleston will present some new challenges to attorneys and litigants. More importantly, it will offer myriad opportunities for parties to resolve their disputes in a more cost-efficient manner.

M. Dawes Cooke, Jr., is a member of Barnwell Whaley law firm in downtown Charleston. His law practice focuses on complex civil litigation, professional liability defense, and personal injury litigation. John Fletcher is an associate attorney at Barnwell Whaley, focusing his law practice in the areas of commercial litigation and appeals.

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