Minutes December 2011

Thursday, December 15, 2011, at 11:00 a.m.
Conference Call

The Council convened at the date, time and place indicated above.

Members Participating:
James L. Bell, Chairperson
Saunders M. Bridges Jr.
M. Dawes Cooke Jr.
Danny Crowe
H. Mills Gallivan
William L. Howard Sr.

Joan S. Brown, Bar Staff
Call to Order, Roll Call and Welcome: Mr. Bell called the meeting to order and welcomed those participating.

Approval of Prior Minutes: The Section Council received the Minutes of the September 23, 2011, and November 9, 2011, meetings and adopted them by motion, second and unanimous vote.

Reports/Old Business:
ADR Commission Update: Judge Howard reported that the Court had appointed two new members of the ADR Commission: Pamela Deal of Clemson and Patricia Grant, Clerk of Court of Colleton County. Ms. Deal had a very strong family court litigation and mediation background and filled the need for a larger family court voice on the Commission. Ms. Grant had gained valuable first-hand ADR experience from a clerk’s perspective when the 14th Circuit transitioned into the mandatory mediation program. Another advantage of having Ms. Grant on the Commission was that the majority of areas to be addressed by any expansion of the mediation program in the coming years would be closer in size to Colleton County.

Judge Howard reported that the Commission had submitted the following recommendations to the Court for five S.C. Court-Annexed ADR Rules changes and the addition of Rule 5 to the Probate Court Rules.

Rule 4(a) – Rule 4 dealt with selection or appointment of a neutral, specifically with eligibility to serve as a neutral. The two proposed amendments were (1) to add a category for “evaluator,” to accommodate the legislative amendment to the medical malpractice pre-suit mediation statute, S.C. Code Ann. Section 15-79-120, providing “early neutral evaluation” as an alternative to pre-suit mediation, and (2) to provide that a neutral may be a person who was a certified neutral under Rule 15, or was not a certified neutral but in the opinion of all the parties was otherwise qualified by training or experience to mediate or arbitrate all or some of the issues in the action. The impetus for this second change was that many parties, who were dissatisfied with their mediation results, complained when they later learned their mediator was not certified and they were not told this at the time of the mediation. The Commission proposed the amendment of Rule 4(a) to include a disclosure requirement and a requirement to obtain written consent from all of the parties on an approved consent form. The Commission hoped this disclosure requirement might also motivate uncertified mediators to seek certification under Rule 15.

Rule 9 – Rule 9 dealt with compensation of neutrals. The Commission recommended two amendments, both of which were applicable to court-appointed mediators only. The existing rule limited actual expenses that could be charged by court-appointed mediators to a total of $50. The rationale for amending this rule was that many mediators in larger counties, who had agreed to serve in the smaller counties having few mediators, sometimes travelled long distances to and from the mediation, incurring travel costs significantly higher than the $50 designated. To maintain the ability to draw mediators into the smaller, rural areas of the state, the Commission recommended a rule change to allow the court-appointed mediator to charge mileage costs for travel to and from the mediation based on the standard business mileage rate established by the Internal Revenue Service, as periodically adjusted. It also recommended that the rule be modified to allow the mediator to recoup the costs actually advanced on behalf of the parties to the mediation conference. For example, many mediators paid for lunches for all participants in order to keep the mediation going without interruption. This provision would allow a mediator to be reimbursed, but only for costs advanced on behalf of the parties.

Rule 10(b) – Existing Rule 10(b) addressed the issue of sanctions for failure to comply with the mandatory mediation requirement and was drafted for the circuit and family court mandatory mediation programs. The Pilot Magistrate Court Mediation Program, operating in four counties pursuant to Supreme Court Order dated January 29, 2007, was not covered by the rule so it had no guidance as to appropriate sanctions for failure to comply with the pilot program’s requirements. To address this issue, the Commission had proposed a change to Rule 10(b) to provide for limited appropriate sanctions.

Rule 15(b)(1)(C) – This proposed change was a change in name only. The nomenclature for “associate counselor” had been changed to “licensed professional counselor intern” by the licensing authority. The existing Rule 15(b)(1)(C) did not include a “licensed professional counselor intern” category, and the Commission proposed this amendment to reflect that change.

Rule 16 – Existing Rule 16 listed the minimum criteria necessary for a training program to qualify. However, the existing rule did not provide any guidance on the minimum criteria necessary to conduct a training program as a trainer. The Commission recommended the addition of subparagraph (d) to address this issue, prescribing the minimum criteria needed to be a trainer.

Probate Court Rule 5 – Adoption of a statewide, uniform Probate Court Mediation Rule. In 2007, the Probate Section of the Bar, along with Probate Judge Debra Faulkner, drafted a proposed mediation program to be implemented in the probate courts of this state. The Commission recommended the proposed program, and the Court implemented it by Court Order in August, 2007. Judge Faulkner had gathered feedback from the initial program, which had proved to be a great success, with thirty-five of the forty-six counties having implemented it. Based upon the above, Judge Faulkner, Richard Hinson, Katherine Wells and Catherine Kennedy, drafted a proposed Rule 5 as an addition to the existing SC Rules of Practice for the Probate Court to make mediation a permanent part of probate court practice. The Commission recommended the adoption of Rule 5, with an appropriate reference to it to be included in the Index to Alternative Dispute Resolution.

The next Commission meeting was scheduled for January 19, 2012.

Convention Seminar Update:  Mr. Bridges reported that the majority of the seminar would be conducted by Mr. Crowe, Robert M. Erwin, Jr., Esq., John P. Freeman, Esq., Mr. Sowell and himself discussing confidentiality and Ethics Advisory Opinion 10-04 and its implications. Also included would be a discussion of collaborative law, as well as the presentation of the C. C. “Cotton” Harness, III, Peace Award.

Sea Island Mediation Network Donation:  Mr. Bell reported that he had spoken with R. Nichols Felix., Esq., about the donation, who said for the Section to decide what to do with the donation. A training on ADR to be held in the Beaufort area was proposed. Judge Howard suggested that the Council revisit the issue after the Court made a decision on the proposed rules changes.

Progress on Goals:
Collaborative Law – There was no report.

Report on Institute on Dispute Resolution – A discussion was had concerning whether or not there was a need for the Institute on Dispute Resolution in view of the fact that both law schools were training lawyers in alternative dispute resolution, and the Charleston School of Law was emphasizing training. Judge Howard was to check with the SC Bar and the ADR Commission to determine how much demand there currently was for mediator training and how many courses and students were taught in 2011 and report back to the Section.

C.C. “Cotton Harness III, Peace Award: Several excellent certified mediators were mentioned to receive the award. Upon proper motion and second, the Council voted to make the award at the Bar Convention on January 19, 2012, to Robert M. Erwin Jr., Esq.

Rule for Payment of Mediators:  Following up on the discussion regarding the problems mediators were having collecting their fees, Judge Howard suggested that someone write an article for the Bar magazine informing the readers of the Ethics Advisory Committee’s FAQ on the topic.  Mr. Bell agreed to write it as Section Chair. No further action was taken.

Law School Professors Sitting Ex Officio on the Council: Following discussion and upon proper motion and second, the Council voted to invite law professors from both law schools to sit ex officio on the Council.

Next Meeting: The Council voted that the next conference call meeting be held at 11:00 a.m. on February 16, 2012.

Adjournment: There being no further business, Mr. Bell adjourned the meeting.