Mediation
The South Carolina Court-Annexed Alternative Dispute Resolution Rules define mediation as "an informal process in which a third-party mediator facilitates settlement discussions between parties. Any settlement is voluntary. In the absence of settlement, the parties lose none of their rights." A mediator is a "neutral person who acts to encourage and facilitate the resolution of a dispute. The mediator does not decide the issues in controversy or impose settlement." Mediation is an opportunity to persuade the other party that a settlement is better than the expense and time of going to trial.
Deciding when to mediate will depend on the facts and circumstances of each particular case. In South Carolina pre-suit mediation is now required by statute in all medical negligence cases if the cause of action arose on or after July 1, 2005. In medical malpractice suits, the plaintiff is required to file a Notice of Intent to File Suit, which must inform the defendants that the case is subject to pre-suit mediation within 120 days and must contain a place for the names of the primary and secondary mediator appointed by the Clerk of Court.
Do's and Don'ts for an Effective Mediation
1. Prepare your case as if you were going to court.
2. Prepare a memorandum for the mediator
3. Confirm who will be present
4. Give an opening statement
5. Use visual aids and demonstrative exhibits
6. Direct your presentation to the one with settlement authority
7. Educate the mediator
8. Know you range of settlement
9. Listen to the mediator's question and comments
10. Be patient
11. Don't intimidate, persuade
12. Don't close the door
13. Don't make unreasonable settlement offers
To read more on the Do's and Don'ts for an Effective Mediation see The Justice Bulletin, Fall 2009 pages 18-22.
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