Mediation is often a very misunderstood process. Part of the reason possibly comes from the stigma that alternative dispute resolution is “mandatory” in South Carolina. While the rules require that parties physically attend a mediation session in order to get to a final hearing, there is nothing mandatory about making the parties settle their case or their differences. During mediation, there is the possibly that the parties can resolve their difference on their own through some mutual understanding. Sometimes, people attend mediation as their last chance to reach a resolution that they can live with and still not give up all control of the outcome. Some people, either in divorce or custody cases, go through entire mediations without realizing that the mediator is not a Judge. Neither party needs to “win over” the mediator or convince them of the rightness of their position. This is because mediation is based on the doctrine of self-determination. That the parties are in the best possible position to solve their own problems.
But in order for parties to reach their own conclusions that they are better off solving their own problems, rather than punting the issue to be determined by a Judge, people often ask “what would a Judge do if we do go to a hearing.” Some feel that a good mediator is one that can likely determine what will happen if the parties go to a final hearing and adequately communicate that to the parties. Often, the mediator is needed to help one side, the other or both, that they are taking an unrealistic position and need to adjust their views on how a case should be settled.
A good mediator however is much, much more than a messenger that carries proposals back and forth. The mediator is in control of the mediation process. The mediator helps the parties understand the other’s position and even more importantly, how the other party came to that position. A mediator helps the parties explore opinions that might otherwise might not have been considered. It is in this way that the mediator helps the parties determine their own future.
