Mediating in Probate Court

Mediating an argument

Mediation is now required in the majority of courts in South Carolina, which have adopted South Carolina’s Rules for Alternative Dispute Resolution (“ADR”). Probate Courts do not fall within the ADR rules, but the Probate Court has adopted its own rules on mediation that are implemented in most courts throughout the State. When litigating a matter in Probate Court, it is important to understand the expectations and requirements of mediating in this unique court. A mediation is an opportunity for parties to a lawsuit to meet at an agreed-upon place and time to attempt to find a solution to their legal issues, rather than proceeding to a trial before a judge. If a legal issue is resolved at a mediation by agreement of the parties, the court will no longer need to determine the outcome of the litigation through witness testimony and legal arguments.

By Order of the South Carolina Supreme Court in August of 2007, our State began a Probate Court Pilot Mediation Program. The Supreme Court’s Order recognized that Probate Courts are unique and that they present issues that are not found in South Carolina’s Criminal, Family, or Circuit Courts. For example, a Probate judge may be faced with an array of legal issues affecting those that are very young (minors), very old, incapacitated, or those that have passed away. These groups of individuals are some of the most vulnerable. Probate Courts are also unique because the probate judges in our State are elected by popular vote and each county pays the probate judge’s salary. Over the years, cases in the probate courts have risen, putting more strain on our judges. Mediation can help alleviate some of the stress on our Probate Court system, and it also may assist in resolving probate matters early and with less costs to the parties involved.

A majority of Probate Courts in South Carolina have adopted the Mediation Pilot Program, which requires mediation of contested Guardianship and Conservatorship matters, and allows for mediation in all other contested matters upon motion of a party or order of the court. Rule 5 of our Probate Court Rules states that all contested litigation in Probate Court is eligible for a referral to mediation. In most circumstances, a judge will order the parties to mediate in order to address many of the contested issues in these case, and it is often encouraged to mediate early.

Mediation can offer many benefits to all parties involved. This is often a first opportunity for each side to communicate with the other in a neutral setting following the filing of a lawsuit. Oftentimes, Probate Court parties are family members, and emotions run high. Mediation can be useful in tempering tough feelings and allowing family members to let their guard down in a controlled setting. Each party is encouraged to talk freely, and no discussions at mediation are admissible in court later. Trained mediators serving as neutral third parties can be helpful in resolving many issues through group discussion and separating the parties when appropriate. Although there are costs associated with mediation, these costs are generally much greater than those expended when taking a litigated probate court issue to trial.

Have questions about mediation or Probate Court? Contact us and we’ll help guide you in the right direction.