Minutes June 2011

Friday, June 24, 2011, at 2:00 p.m.
Conference Call
Columbia, SC 29201


The Council met at the date, time and place indicated above.
Members Participating:
James L. Bell Chairperson-Elect
Michael Battle
Saunders M. Bridges, Jr.
Robert Hassold, Jr.
William L. Howard, Sr., Chair of ADR Commission
Sean F. Keefer
Thornwell Sowell, III

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

Approval of Prior Minutes:  The Section Council received the Minutes of the May 20, 2011, meeting and adopted them by motion, second and unanimous vote.

Reports/Old Business:
a. ADR Commission Update: William L. Howard, Sr., Chair of the ADR Commission, reported that the Commission had approved and submitted two proposals drafted by the Hon. Lisa A. Kinon, Judge of the Family Court of Horry County, to the Supreme Court about a year ago seeking permission to establish a program to provide hearing officers for uncontested family court matters and a program to establish a statewide DSS mediation program. As background, he explained that three years ago, Chief Justice Toal had given Judge Kinon permission to establish pilot hearing officer and DSS mediation programs in Horry County. The programs had proved to be highly successful, with 95% of DSS cases being settled through mediation. Initially, DSS had wanted to be exempted from the mediation process but, given the success of the program, had altered its view and was very supportive and eager to establish the Statewide DSS Protocol. Before the most recent Commission meeting held June 3, 2011, the Supreme Court had contacted Judge Kinon about the proposals asking whether or not the Commission still recommended them. Surmising that the Court wanted specificity in such matters as each county’s physical facilities, security measures and source of mediators, the Commission decided that designated members would meet with the local bar presidents to enlighten them on the issues and to request that they poll their bar members as to their willingness to participate in the programs. The Commission sought input from the Chief Justice, who agreed for the Commission to meet with the local bar presidents, provided that the bar presidents understood that the Commission was approaching them, not the Supreme Court. Judge Kinon had said that it could be fruitful to meet first with the new DSS Director who, as DSS Director in California, had used grant money for mediation. Thereafter, Judge Kinon had arranged for Judge Howard and her to meet with the DSS Director in mid-July. The plans were to approach the bar presidents after the meeting.

Another matter addressed by the Commission was the subject of confidentiality vs. privilege in mediation settings. Instances to consider included changes in lawyers after the mediation has begun and what can be revealed to experts and advisers. Judge Howard requested that the Council monitor this issue.

b. DR Section’s Web Page Update: Mr. Hassold reported that he had submitted to the Council via email proposed language for the DR Section’s Web page and requested that Ms. Brown provide the additional information and have the language posted online. He also suggested additional changes to include adding links to the CLE’s ADR trainings and the roster of certified neutrals, as well as changing the name of the link “Section Council” to “Section Leadership.”

c. Sea Island Mediation Network Donation: Mr. Bell reported that he had left word for R. Nicholas Felix, Esq., to call him on this issue. Since no contact had yet been made, Mr. Bell requested that the matter be included on the agenda for the next meeting.

d. Progress on Goals:
i. Collaborative Law – Mr. Keefer reported that he had the outline finished for the article he was drafting. He had contacted two individuals in the Charleston area to contribute quotes on their practices to get a real world perspective. He explained that the focus of the article would be on family court, but would also address collaboration as it applies to civil court, particularly in probate and business matters. In response to a concern expressed by Mr. Bell about the European version of collaborative law where law firms are owned by accounting firms, Mr. Keefer explained that the Section’s proposal would give the lawyer final control. Mr. Keefer explained that some states, such as North Carolina and Texas, have specific statutes which address collaborative law, while others have local rules that do. Mr. Keefer and Mr. Hassold agreed to serve as a committee to review rules changes for South Carolina. Guy Vitetta was mentioned as a possible third member of the committee.

ii. South Carolina Institute on Dispute Resolution – Mr. Bell reported that he had talked to both law schools about this project, and both had expressed interest. He also stated that he would like the Commission’s input on the project. He stated he had a call into Robert S. Wells, Executive Director of the South Carolina Bar, to meet and obtain a more formalized procedure. Mr. Bell reported that he had received an email from Mr. Keefer with sample bylaws and training agendas attached. Judge Howard suggested that the Mr. Bell contact James Peterson, the Chair of the South Carolina Board of Arbitrator and Mediator Certification, to discuss the Board’s current status and the transition period it was experiencing as to trainings. Mr. Bell reported that the issue of funding had not yet been addressed.

iii. Compilation of Rules, Statutes and Regulations – Mr. Sowell reported that his firm’s summer law clerks were working on this matter and were expected to be finished by the next meeting.

e. The C. C. “Cotton” Harness, III, Peace Award: The Council agreed for the Committee to pick the awardee(s). Mr. Bell requested that Mr. Hassold and Mr. Sowell send times they would be available for a telephone conference between Tuesday, June 28th and Thursday, June 30th, after 10:30 a.m.

f. Rule for Payment of Mediators: Mr. Bell stated that mediators should make sure their agreements state clearly the terms for payment of their fees. He said that his agreement was effective and that he got paid one hundred percent of the time. It was his practice to send a letter within thirty days of the mediation quoting the agreement’s payment provision. He also said that although there had been no ruling from the court on this matter, Ethics Committee FAQ #11 stated that mediator services were analogous to court reporter services; therefore, mediators would also be entitled to payment under In re Thornton, 342 S.C. 440, 538 S.E.2d 4 (2000).

g. Law School Professors Sitting Ex Officio on the Council: Mr. Bell reported that he had talked to Dean Robert Wilcox about this matter, who said he had no problem with a professor sitting ex officio on the Council. Mr. Bell said he would send an official invitation to the law school deans inviting them to participate. The Council maintained that it wanted mediation-trained professors, but that it did not know if there were mediation-trained professors at the University of South Carolina Law School. It was reported that there were several on the faculty at the Charleston Law School. Upon motion and second, the Council voted for Mr. Bell to send the letters to the deans.

Next Meeting: Mr. Bell scheduled the next meeting, which would be a conference call, for 2:00 p.m. August 26, 2011.

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