Mediation in Probate Court: What to Expect

​The majority of Probate Courts in South Carolina have adopted the Supreme Court’s Mediation Pilot Program which began almost eight (8) years ago. Under this program, certain cases must be mediated before they are assigned a trial date. This post provides some basic information on what to expect at mediation.

What Exactly Is Mediation?

Mediation is when individuals (usually with their legal counsel) attempt to find a solution to a legal matter instead of having the court determine the outcome. Mediations are conducted by a mediator, a neutral third party whose sole purpose is to help both sides reach an agreement. These mediators might be chosen by the parties or assigned by the Court.

How Do I Choose a Mediator?

Just like in any profession, not all mediators are the same. Factors such as experience and training can have a substantial impact on the outcome. If you have an attorney, they will likely make a recommendation based on the issues to be mediated, the personalities of the parties and even recommendations from the Court.

What Should I Expect?

Mediation is all about moving forward and finding a solution all parties can agree on in order to end the dispute. Mediators aren’t there to take sides, find the truth or force the parties to do anything they don’t agree to.

While every mediation is different, they generally include the following steps:

  • Mediator’s Opening Statement: Once the parties are seated at a table, the mediator makes introductions, outlines the goals and rules of the process and urges both sides to work cooperatively toward a settlement. Clients are often nervous about sharing space with the parties they are opposing. If this applies to you, let your attorney and mediator know this in advance. While a joint meeting isn’t mandatory, it can be very helpful when the parties can agree to it.
  • Parties Opening Statements: Each party will have the opportunity to give his or her version of the story, providing insight as to how the issue has impacted them and providing the mediator with suggestions to resolve it. If everyone is in the same room, it’s often beneficial for everyone to hear these statements as they often a preview of what will be said in court.
  • Joint Discussion: Depending on the environment, the mediator may ask the parties to speak openly about what issues need to be addressed, what settlement conversations or negotiations have already occurred and what offers are currently on the table. Some parties prefer to do this privately when just the mediator is present.
  • Private Caucuses: Caucus is just a fancy word for a meeting. During this stage, each party is given the opportunity to have a one-on-one meeting with the mediator to discuss their feelings, frustrations, evidence and any new insight on ways to settle the dispute. It’s crucial to share openly with the mediator and important to remember that everything you tell the mediator is confidential and can’t be shared without your permission.
  • Joint Negotiation: This is where the mediator gets to work and actively negotiates between the parties to attempt to resolve the dispute. While the mediator might make suggestions, they can’t force you to accept their recommendations. They will do their best to show each party the pros and cons of taking this matter to trial in an effort to reach a resolution.
  • Closure: If the mediation is successful and an agreement has been reached, the mediator will likely put the primary provisions in writing as the parties listen. The mediator may request each person sign the document outlining the agreement that has been reached. If the mediation is unsuccessful, the mediator will identify any progress that was made and provide each party with their options, such as a future meeting, arbitration or as a last resort, going to court.

Contrary to popular belief, mediation is a simple forum in which both sides can express their grievances in a safe environment in hopes of coming to an agreement that works for everyone. Unlike a traditional win or lose scenario in a courtroom, mediations are most successful when each party compromises. They’ve provided great outcomes for every type of dispute including probate, divorce and child custody and even complex civil litigation.

​Provence Messervy has multiple mediators certified in both civil and family mediation and would love the opportunity to help you resolve your dispute outside of the traditional courtroom setting.