The Supreme Court of South Carolina

RE: PROBATE COURT PILOT MEDIATION PROGRAM


ADMINISTRATIVE ORDER



Pursuant to the provisions to Article V, §4 of the South Carolina Constitution, the Court adopts the attached procedures and forms for the Probate Court Pilot Mediation Program. This Probate Court Pilot Mediation Program may be implemented by County Probate Courts. The program has the support of The Commission on Alternative Dispute Resolution, S.C. Probate Judges Association, S.C. Bar Probate Estate Planning and Trust Section Council, S.C. Bar Elder Law Committee and the S.C. Bar Alternative Dispute Resolution Section Council. This Order is effective upon the date of my signature.

As soon as possible after January 1, 2009, the S.C. Commission on Alternative Dispute Resolution will issue an assessment of the pilot program to the Supreme Court.

IT IS SO ORDERED.

s/Jean H. Toal                                    C.J.

s/James E. Moore                             J.

s/John H. Waller, Jr.                           J.

s/E. C. Burnett, III                                J.

s/Costa M. Pleicones                        J.

August 23, 2007

Columbia, South Carolina


PROCEDURES FOR THE PILOT PROGRAM FOR PROBATE COURT MEDIATION

1. General. These procedures and forms govern the conduct of the Pilot Program for Probate Court Mediation ("Pilot").

a. Unless otherwise specifically set forth in section 4 hereof, the default procedures and forms applicable to this Pilot are those set forth in Rules 1 10, Rules 14 20, and Appendices B and C of the Court Annexed Alternative Dispute Resolution (ADR) Rules ("ADR Rules") as those Rules apply to South Carolina Circuit Courts in civil suits.

b. References in the ADR Rules to Circuit Courts, Circuit Court Judges, and Clerks of Court shall be construed for purposes of this Pilot as referring to Probate Courts, Probate Court Judges, and Probate Court staff, as applicable. ADR Forms may be re titled to refer to the applicable county Probate Court.

c. Nothing in these procedures should be construed or interpreted to contradict or supersede provisions of the South Carolina Probate Code, the South Carolina Rules of Civil Procedure, or the South Carolina Rules of Probate Court.

d. In the event that an applicable procedure does not address a specific situation, Probate Court Judges are expected to exercise their discretion in a manner consistent with the purposes of these procedures and forms as set forth in the following section.

2. Background and Purposes. Probate Courts in South Carolina are unique in that they present a combination of traits not found elsewhere in this State's judicial system. As with our other courts, any case may confront a Probate Court Judge with the need to decide a broad range of factual, legal, and equitable issues. Unlike most of our other courts (with the notable exception of Family Courts), Probate Courts focus upon the best interests of those demographic elements of South Carolina's population least able to protect and express themselves including the very young, the very old, the incapacitated, and decedents. Further, Probate Court Judges are elected by the people and paid for by each of our State's 46 counties. With the passage of time, inevitable population growth, and the impact of unavoidable demographic trends, case loads and the needs of Probate Court "clients" have been rising, while the availability and application of funding is forcing ever more difficult choices among competing priorities. Against this background, these procedures are intended to furnish a basis for examining the utility of mediation in the Probate court context in order to

a. Permit Probate Courts and contesting parties the opportunity to save time, effort, and money;

b. Permit contesting parties the opportunity to exercise greater control over the outcome of their own contested Probate Court cases and issues;

c. Allow the Probate Courts to focus their resources and attention on those cases that cannot be settled voluntarily by contesting parties; and

d. Furnish a basis for future decisions as to the efficacy and broader implementation of mediation in Probate Courts.

3. ADR Mode(s). These procedures are intended to address the scope and application of mediation in the Probate Courts. These procedures are not intended to address in any way the subject of arbitration in the Probate Courts.

4. Procedures Specifically Applicable to Probate Court. The following procedures shall apply to the conduct of Probate Court mediation notwithstanding any inconsistent or contradictory procedures set forth in the ADR Rules (In each instance, numbering refers to the applicable ADR Rule):

Rule 3(a). Mediation. Subject to Rule 3(b), Exceptions, all contested issues in civil cases within Probate Court jurisdiction are subject to Court ordered mediation, as follows:

(1) Absent good cause shown, mediation is required for all contested issues in guardianship and/or conservatorship cases; and

(2) Upon motion of any contesting party or of the Probate Court, mediation may be ordered for contested issues in all other classes of cases at the discretion of the Probate Court Judge.

Rule 4(c). Appointment of Mediator by Probate Court. In probate court cases subject to ADR, early mediation is encouraged. Unless the Probate Court is advised that contesting parties have selected and appointed a mediator beforehand,

(1) For contested guardianship and/or conservatorship cases, absent good cause shown, the Probate Court Judge shall appoint a primary mediator and a secondary mediator from the Roster of Certified Neutrals as soon as it is known to the Probate Court that the disagreement of the parties will result in a contested case, but in no event later than the earlier to occur of a hearing for the appointment of a temporary guardian and/or conservator or fifteen (15) days after joining of the issues in a contested matter.

(2) For all other classes of Probate Court cases, the Probate Court Judge may appoint a primary mediator and a secondary mediator from the Roster of Certified Neutrals at any time following the filing of an application/petition for appointment as Personal Representative, whether for informal or formal proceedings, or upon the filing of any other application or petition with the court, if the Probate Judge, in his or her discretion, determines that issues have been or may be raised which may be resolved through mediation.

(3) An initial mediation conference must occur within forty-five (45) days of appointment by the Probate Court, and the parties must complete mediation and file a Proof of ADR with the Probate Court before a merits hearing can be scheduled.

Rule 5(h). Scheduling in Probate Court. The parties shall cooperate with the mediator to schedule mediation, and the mediator may recess a mediation conference at any time and may set times for reconvening. No further notification is required for persons present at the recessed conference. The case shall not be scheduled for hearing in the Probate Court until a Proof of ADR is filed.

Rule 6(a). Duty to Inform. In cases subject to mediation under these procedures, notice of a mediation settlement conference shall be given to all interested parties in accordance with section 62-1-401 of the South Carolina Probate Code.

Rule 6(b). Attendance. The following persons shall physically attend a mediation settlement conference unless otherwise agreed to by the mediator and all parties or as ordered or approved by the Probate Court Judge:

(1) The mediator;

(2) All contesting individual parties; or an officer, director or employee having full authority to settle the claim for a contesting corporate party; or in the case of a contesting governmental agency, a representative of that agency with full authority to negotiate on behalf of the agency and recommend a settlement to the appropriate decision making body of the agency; and all other interested persons who have filed with or made known to the Probate Court an application or petition or objection, irrespective of the form thereof, concerning the issues to be mediated;

(3) The party's counsel of record, if any; and

(4) For any insured party against whom a claim is made, a representative of the insurance carrier who is not the carrier's outside counsel and who has full authority to settle the claim.

In addition, while not required to do so, though not a contesting party, an interested party who has or should have received notice of a mediation settlement conference pursuant to Rule 6(a) above may attend such mediation settlement conference with that party's counsel of record.

Rule 6(h).Agreement in Probate Court. Upon reaching an agreement, the
parties shall, before the adjournment of the mediation, reduce the agreement to writing and sign along with their attorneys. It is the obligation of the parties to seek approval of the agreement by the Probate Court.

Rule 9(b). By Court Order - Mediation. When the mediator is appointed by the Probate Court, if the Probate Judge determines that the mediation was conducted for the benefit of the incapacitated person or estate, the mediator shall be compensated from the funds of the incapacitated person or estate. Should the Probate Judge find that such payment is not proper, or if no or insufficient funds are available to cover these costs, the mediating parties shall equally bear the reasonable costs of mediation, subject to the approval of the Probate Judge. The mediator's rate shall not exceed $175 per hour. Reasonable charges by the mediator for his or her preparation time beyond one hour shall be permitted at the discretion of the Probate Court Judge. Reasonable expenses, including but not limited to travel expenses, shall be subject to reimbursement at the discretion of the Probate Court Judge. An appointed mediator may charge no more than $175 for cancellation of a mediation settlement conference.

5. The Probate Court and Parties to the Mediation. The participants of the Mediation Program will complete the pilot assessment forms attached and submit to the Commission on ADR. The final report will be submitted to the Court at the end of the Probate Court Pilot Mediation Program by the Commission on Alternative Dispute Resolution.

FORMS FOR THE PILOT PROGRAM FOR PROBATE COURT MEDIATION

Acrobat Word 315PC Final Report
Acrobat Word 316PC Court Report and Evaluation
Acrobat Word 317PC Participant Report and Evaluation