Mediation gaining popularity in dispute resolutions

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By Christina Lee Knauss

Imagine being able to settle a dispute with an annoying neighbor, a shoddy contractor, or even a spouse or family member without having to experience the stress and financial strain of going to court.

Mediation can allow that to happen, and it is being used by more and more people in South Carolina to resolve everything from divorces to probate issues and community disputes.

An increasing number of attorneys are becoming certified mediators to offer their clients this option, while people in the community are stepping up to receive training to become volunteer mediators.

“Mediation is a way to have a neutral third party help the individuals in conflict to reach a conclusion they can all live with,” said Cindy Coker, public services director for the South Carolina Bar Association. “The mediator helps people solve their own problems.”

Parties in mediation also have complete control of the outcome instead of yielding their fate to a judge or jury. They have the option of settling the matter in mediation, going forward with litigation or trying to settle it through another form of alternative dispute resolution. Mediation proceedings are also usually confidential.

Depending on the situation, some people might not have a choice about trying mediation. The process is now mandatory in all 46 counties in South Carolina when it comes to circuit and family court matters, with limited exceptions. Probate judges can order mediation if a dispute about assets makes it necessary, and mediation is also used in some magistrate courts. A pilot program for magistrate courts is currently underway in Richland County.

Mediation also becoming increasingly popular as a way to deal with community issues such as disputes between neighbors, landlords and tenants, and workplace conflicts.

“The best thing about mediation is it’s less stressful, because nobody wins and nobody loses,” said Earl Ellis, a Columbia-based lawyer and mediator who runs Earl Ellis Mediation. “It takes compromise, but I have noticed that almost without exception people are pretty happy when we get their case settled through mediation.”

Ellis trained to become a certified mediator 20 years ago and decided to work strictly in mediation full time three years ago. He handles mediation in civil matters around the state.

Columbia attorney Carol Sanders has been mediating in family court for many years and serves on the Bar’s Alternative Dispute Resolution Commission as well as the Board of Mediator and Arbitrator Certification.

Sanders said mediation is an appealing option for many reasons: it helps to alleviate chronically crowded court dockets, is not as expensive and also helps the parties to reach an agreement without the hostilities that too often flare in a courtroom. This can be especially important in divorce cases, “particularly when there are children involved,” Sanders said. “Some parents never get over some of the resentments that come from litigating a case. Some of that can be alleviated if the two parties get to craft their own agreement.”

Ellis said another positive of mediation in civil matters is that the two parties are able to reach a settlement about 85% of the time, either at the mediation session itself or shortly afterward.

Mediation does not take place in a courtroom. It can occur in a separate room at the courthouse, at a lawyer’s office or in another location that the parties choose, Coker said.

Two community mediation centers in the state — Midlands Mediation Center in Columbia and Upstate Mediation Center in Greenville — offer mediation sessions led by volunteers and often hold sessions at onsite conference rooms.

In South Carolina, only lawyers can become certified mediators, and the South Carolina Bar maintains a directory of them at https://www.scbar.org/lawyers/directory/adr-search/

However, clients in civil and family court have the option of selecting whoever they want to mediate their case.

“Parties can choose to use a mediator who is not trained and who has not been certified, but if they do, they have to sign a form acknowledging that they know the person is not certified,” Sanders said.

Lawyers who seek certification have to complete a 40-hour training session run by the S.C. Bar. Non-lawyers who want to be trained in mediation skills can sign up for training at one of the state’s two mediation centers.

Midlands Mediation Center, for instance, offers a 20-hour “Introduction to Mediation” course which covers topics such as the dynamics of conflict, active listening skills, dispute resolution styles and the mediation process itself. Role-playing is a big part of the mediation training for both lawyers and non-lawyers.

Lawyers charge a fee for mediation sessions, and the mediation centers charge clients on a sliding scale. Those who can’t afford to pay but need mediation services can also seek help through the centers. As part of their certification, certified mediators are also required to designate one county where they would be willing to take court appointments to serve as a mediator for indigent clients.

The concept of mediation might still be new to many, but Ellis hopes more people will learn about and seek it out as a way to resolve conflicts.

“People most often leave mediation feeling better about the process and better about the results than they do leaving the courthouse after a jury verdict,” Ellis said. “It’s just a nicer way, and really a more civilized way, of getting things resolved.”

This article first appeared in the April 22 print edition of the Columbia Regional Business Report.