Local Rule 9019-2: MEDIATION

LOCAL RULE 9019-2: MEDIATION a. Initiation of Mediation and Costs. Any party may file and serve on all other parties to the proceeding a motion for mediation. Mediation, as described herein, is contemplated to be non-binding unless the parties otherwise agree. A party opposing mediation shall have fourteen (14) days to file and serve an objection to the request. After reviewing the request, any objections and, if appropriate, conducting a conference with the parties, the Court may order mediation. The Court may also, sua sponte or upon stipulation of all parties, order mediation. Unless the parties agree upon the sharing of the costs of the mediation, including mediator fees, the division of such costs shall be determined by the Court. Absent an order of the Court setting forth a different deadline, election of mediation by agreement of the parties shall occur no later than the earlier of the filing of a joint pretrial order, the time of the final pretrial conference, or seven (7) days prior to the hearing scheduled in a contested matter.

b. Proposed Order. Any order to mediate shall designate the mediator, specify responsibility for the costs of mediation, and may contain additional provisions regarding the conduct and timing of mediation and the duties and compensation of the mediator.1 The Court may stay the proceeding, in whole or in part, to allow time to complete mediation, but such proceedings and/or hearings related thereto are not to be delayed absent Court approval which may require a showing of exceptional circumstances.

c. Selection of the Mediator. The mediator may be a person who is certified under applicable rules or is otherwise qualified by training or experience to mediate all or some of the issues being litigated. Unless otherwise ordered, the mediator may be selected upon the agreement of all the parties or, if the parties cannot agree upon the selection of a mediator, the Court may appoint one. The mediator must promptly determine all conflicts or potential conflicts pursuant to applicable rules and disclose that circumstance to the parties in writing. If a dispute arises concerning the disqualifying effect of any conflict, the Court shall resolve the issue and may appoint another mediator.

d. Timing and Conclusion of Mediation. Unless otherwise ordered, mediation shall be concluded within thirty (30) days of the order appointing a mediator. The mediator shall report to the Court in writing within seven (7) days following conclusion of mediation whether an agreement was reached by the parties and, if so, whether such agreement will resolve the proceeding and which party or parties will be responsible for the proposed order, stipulation, or notice of settlement. The proposed order, stipulation, or notice of settlement is due within fourteen (14) days of the mediator's report. If the proceeding is not resolved by mediation, the proceeding will be set for hearing, pre-trial conference, or trial in the ordinary course.

e. Disqualification of Mediator. Any party may move for an order disqualifying the mediator. If the motion is granted and the mediator is disqualified, an order shall be entered appointing a replacement mediator.

f. Confidentiality. Communications during the mediation conferences shall be confidential. The parties, their attorneys, and other persons present shall maintain the confidentiality of the mediation and shall not rely on, introduce, or attempt to introduce as evidence in any arbitral, judicial, or other proceeding, any event, document, or communication relating in any way to the mediation. Except when ordered by the Court for exceptional circumstances shown, the mediator shall not be listed or called as a witness or be compelled by subpoena or otherwise to divulge any records or to testify in regard to the mediation in any adversary proceeding or judicial forum. All records, reports, and other documents received or created by the mediator while serving in that capacity shall be confidential.

g. Immunity of Mediator. The mediator shall not be liable to any person for any act or omission in connection with a mediation conducted under these rules or the Local Civil Rules for the United States District of South Carolina.

Notes:

(2025) The rule was revised to clarify who may serve as a mediator, the process for seeking disqualification of a mediator, the immunity of a mediator and confidentiality of mediation conferences.

1 Parties submitting a proposed order should submit an order in substantial conformance with the local form.