Many residents of South Carolina think that a civil lawsuit is a type of conflict that can only be won by the last party standing. In reality, almost 95 percent of civil claims in South Carolina are settled, that is, the parties agree to compromise their differences without enduring a lengthy and potentially expensive trial. Over the last twenty years, judges and lawyers have worked to perfect a process that helps parties settle their conflicts: mediation. Not every lawsuit that settles is the result of mediation, but the mediation process has been adopted in almost every state, including South Carolina, and the process has been shown to result in a much higher number of settled claims.
Most experienced trial attorneys know that settling a lawsuit prior to trial is often a far more efficient method of resolving a civil dispute than a full blown trial. Many unexpected things happen during a trial that can upset the expectations of the parties and their attorneys. Witnesses change or forget their expected testimony, the judge excludes a crucial piece of documentary evidence or one member of the jury develops a strong and immutable prejudice in favor of or against one party. Settlement eliminates all of these “what ifs,” and mediation is a very effective way to find a compromise that is acceptable to all parties.
Mediation is not a miniature trial. Instead, it is a supervised discussion between the parties and their attorneys about the issues in the case. The discussion is led by a trained mediator. Most mediators are either ex-judges or practicing attorneys. They have all received training in mediation techniques.
Perhaps the most important rule for a mediator is to remain neutral and to not take sides. The arguments and concerns of all parties must be given equal weight. The mediator cannot make any decisions or rulings. No settlement of any issue can be reached without the agreement of all parties. The mediator’s role is to listen to the parties, write down their concerns and settlement suggestions and make additional suggestions for compromise. If a mediator thinks that one party is not understanding the position of another party, the mediator may explain the argument in a way that the other party understands. No party can be bound against their will on any issue in the case.
Mediation has three principal benefits. The first is speed. Most judicial districts in South Carolina have lengthy waiting lists to go to trial. An initial mediation session, on the other hand, can often be scheduled within weeks of the filing of the complaint. The second benefit is low cost. A trial may require hundreds of hours of preparation; expert witnesses can charge several thousands of dollars for their evaluations and testimony. These expenses can be largely eliminated if the mediation is successful.
The third benefit is continuity of a business. Many parties in a mediation are businesses that want to continue operating after the dispute is settled. A trial often results in many permanently severed business relationships. Mediation is usually not so destructive to these relationships.
Mediation can be used in a wide variety of cases. Its most common use is in divorces and personal injury cases. However, mediation is often used to settle commercial disputes, breach of contract cases and real estate disagreements. Most experienced trial attorneys are familiar with the mediation process. Consulting such an attorney about the advantages of mediation may relieve a party’s anxiety about the process.