REGULATIONS FOR THE COMMISSION ON ALTERNATIVE DISPUTE RESOLUTION

I.  SCOPE AND PURPOSE

These regulations implement Rule 422, SCACR.

II.  MEMBERSHIP

A.  The membership is defined in Rule 422.  Members appointed under sections b(1) - (4) will serve for a term of three years provided, however, that initial appointments and subsequent appointments may be for terms less than three years to accomplish staggered terms.

B.  Termination of membership of a member other than upon completion of a term will be upon resignation of that member or upon vote of two-thirds of the other members and approval of the Chair.

III.  COMMITTEES; STAFF

A.  The Commission may empower committees to act in the intervals between Commission meetings.  The Chair will name committee chairs and members.

B.  The South Carolina Bar will provide administrative assistance to the Commission from funds provided through the certification process and by the Judicial Department.  The Bar may use the funds to hire administrative staff and for other purposes including but not limited to the following:

1.  To purchase equipment, supplies and services necessary to operate;

2.  To deposit at interest in federally insured banks or savings and loan associations located in the State of South Carolina, with interest or other investment income to become a part of the fund; and

3.  To invest any portion of the funds as may not be needed currently with interest or other investment income to become a part of the fund.

C.  The Commission may delegate to staff administrative responsibilities for certification and other matters.

IV.  MEETINGS; QUORUM; VOTING

A.  The Commission will meet at least four times annually at the call of the Chair.  Notice of the time and place will be given at least two weeks in advance of the meeting.  The meeting may be held in person, convened by telephone conference call or video conference, or a combination thereof.

B.  At all meetings ten members will constitute a quorum.  The latest edition of Robert’s Rules of Order will govern proceedings.

C.  Voting may be in person, by letter, by telephone, by fax or by email.  Members may vote by proxy if the proxy is in writing, signed and received by the Chair prior to the convening of the meeting.  Any matter or proposition will not be action of the Commission without affirmative vote of at least eight members.

V.  SOUTH CAROLINA BOARD OF ARBITRATOR AND MEDIATOR CERTIFICATION

A.  Purpose.

The Board of Arbitrator and Mediator Certification (hereinafter referred to as Board) is established as set forth in the Circuit Court Alternative Dispute Resolution (ADR) Rules and the Family Court Mediation Rules (hereinafter referred to as the ADR Rules).  These regulations are implemented to govern the Board in the certification, recertification, decertification and discipline of mediators/arbitrators (hereinafter referred to as neutrals) and the approval of training courses for neutrals.

B.  Applications for Certification of Neutrals.

1.  Applications shall be typewritten on forms provided by the Board. Each question shall be answered responsively or shown as "not applicable." The signature of the applicant shall constitute a certification that the information furnished in the application is true and correct.

2.  To assist in determining an applicant's entitlement to certification, the Board may require an applicant to submit information in addition to that called for on the application form.

3.  An application shall be deemed incomplete until the application fee, as set by the Supreme Court, has been paid. ^[1]

4.  Processing of Applications.

a.  The Board shall check each application to assure that all portions of the application have been properly completed and that the applicant has complied with all requirements of the Board and the applicable ADR Rules.

b.  An application not approved by the Board shall be returned to the applicant with a letter specifying the deficiencies in the application. The applicant may submit additional documentation/information.

5.  An applicant has the burden of establishing that the requirements for certification have been met. That burden is satisfied only if the Board is convinced by clear and convincing evidence that the application meets or exceeds the standards specified for certification by the applicable ADR Rules and this Board.

6.  A decision of the Board not to approve an application may be appealed to the Commission by filing written notice to the Commission’s Chair, c/o South Carolina Bar, P.O. Box 608, Columbia, SC 29202. The appeal must be made no later than thirty (30) days after mailing of a copy of the notice denying approval. The Board shall supply a copy of all material filed in support of the application. The decision of the Board will be reviewed by all members of the Commission except those who serve on the Board using the same standard set forth in paragraph five above.

7.  Recertification of neutrals shall require that the applicant submit a recertification application on or before December 31^st of each year together with a recertification fee as set by the Supreme Court. ^[2]   Failure to submit a recertification application by the referenced deadline will result in an additional late fee for recertification.

C.  Roster of Certified Neutrals.  The Board shall maintain at the South Carolina Bar rosters of approved neutrals. The Board shall furnish the clerks of the pilot counties updated rosters of certified neutrals on a periodic basis. A neutral who has failed to submit a recertification application and fee by January 15 of each year shall be removed from the rosters.

D.  Decertification, Discipline and Processing of Complaints of Misconduct.

1.  Decertification, discipline and processing of complaints of misconduct by neutrals certified by the Board shall be in accordance with the ADR Rules.

2.  No particular form is prescribed with respect to processing complaints of misconduct of neutrals.  Any such complaint shall be in writing and shall set forth in detail the basis upon which decertification or discipline is warranted.

3.  The complaint shall be filed with the person employed by the Bar and assigned to serve the Commission (hereinafter “Staff”).

4.  Staff shall provide the neutral written notice of the complaint sent to the neutral's address maintained with the South Carolina Bar and may require the neutral to file a response.

5.  The Executive Director of the Bar, or his or her designee (hereinafter “Counsel”), after review of the complaint and response, if any, may investigate the matter and advise the Board when probable cause exists. Such investigation may include meeting with the neutral, the complainant or both.

6.  Upon review of the complaint and the neutral's response, if any, together with any results of investigation, the Board may dismiss any complaint that it finds to be without merit. A decision to dismiss is final and not subject to review.

7.  Notwithstanding any other provision herein, the Board may request that the neutral and complainant meet with one or more members of the Board to resolve the matter.  This resolution may include sanctions if agreed by the neutral.  If sanctions are accepted, all relevant documentation shall be forwarded to the Supreme Court.

8. If probable cause exists and the matter cannot otherwise be resolved, the Board shall notify the Commission Chair who shall appoint three (3) members of the Commission, who have not been involved previously in the matter, as a Hearing Panel. Neither the Chair of the Commission nor the members of the Board shall participate as members of the Hearing Panel. The Commission Chair shall designate one member as Chair of the Hearing Panel. The Hearing Panel shall schedule a hearing in accordance with the ADR Rules and these Regulations. The Hearing Panel may petition the Supreme Court to temporarily suspend a neutral’s certification pending outcome of the hearing. Counsel shall prosecute the matter.

9. In matters of decertification, discipline and processing of complaints, three (3) members of the Board or the Hearing Panel shall constitute a quorum. In the event that members of the Board or Hearing Panel disqualify themselves in a pending matter leaving less than a quorum, the Commission Chair shall appoint ad hoc members to restore the Board or Hearing Panel to full membership in that matter. Decisions and recommendations shall be by majority vote.

10. Access to Disciplinary Information.

a. Except as otherwise provided in the ADR Rules and these Regulations or ordered by the Supreme Court, all complaints, proceedings, records, information or orders relating to an allegation of misconduct shall be confidential and shall not be disclosed to the public. While the matter remains confidential, the members of the Board, the ADR Commission, the staff of the Commission, the members of the Supreme Court and the staff of the Supreme Court shall not in any way reveal the existence of the complaint except to persons directly involved in the matter and then only to the extent necessary for the proper disposition of the matter. A violation of this provision may be punished as a contempt of the Supreme Court.

b. When charges are filed regarding allegations of misconduct, the charges and any answer shall become public 30 days after a hearing panel is appointed. Thereafter, except as otherwise provided in the ADR Rules and these Regulations or by the Supreme Court, all subsequent records and proceedings relating to the misconduct allegations shall be open to the public inclusive of any sanction imposed after the filing of charges. If allegations of incapacity are raised during the misconduct proceedings, all records, information and proceedings relating to these allegations shall be held confidential.

c. The Board and/or Commission may, however, disclose information at any stage of the proceedings:

i. When the chair, vice chair or a panel of the Commission has determined that there is a need to notify another person to protect that person or to notify a government agency in order to protect the public or the administration of justice;

ii. To appropriate law enforcement officials when the chair, vice chair or a panel of the Commission determines that it is in possession of reliable information indicating that a person has violated the criminal laws of this state, any other state, the District of Columbia or the United States;

iii. Upon waiver in writing by the neutral; or

iv. To the appropriate disciplinary authority in any jurisdiction in which a neutral is admitted to practice law or any other profession or has applied for admission to practice law or any other profession concerning a matter where there is evidence the neutral committed misconduct under the alternative dispute rules or regulations of that jurisdiction or where a neutral receives any sanction under these regulations.

d. In order to protect the interests of a complainant, witness, third party or neutral, the hearing panel may, upon application of any person and for good cause shown, issue a protective order prohibiting the disclosure of specific information otherwise privileged or confidential and direct that the proceedings be conducted in a manner to preserve the confidentiality of the information that is the subject of the application.

e. Either party may disclose in proceedings before a hearing panel statements and other evidence gathered prior to the matter becoming public after a filing of charges, that were subject to discovery under the ADR Rules and these Regulations to the extent admissible under the South Carolina Rules of Civil Procedure or South Carolina Rules of Evidence.

11. Communications to the Board, Commission or their staffs relating to misconduct or incapacity in testimony given in the proceedings shall be absolutely privileged, and no civil lawsuit predicated thereon may be initiated against any Complainant or witness. Members of the Board, Commission and staff shall be absolutely immune from civil suit for all conduct in the course of their official duties.

E.  Hearing Procedures.

1.  The Hearing Panel shall provide the complainant and the neutral written notice of the hearing at least ten (10) days prior to the scheduled hearing.  Any such notice shall be in writing and given by registered or certified mail; UPS or other reputable carrier; or by telecopy (FAX) addressed to the complainant's and neutral's last known address.

2.  Subpoenas for the attendance of witnesses and the production of documentary evidence may be issued by the Chair of the Hearing Panel or, if the Chair of the Hearing Panel is absent or unavailable, by any other member of the Hearing Panel. Such subpoena may be served in any manner provided by law for the service of witness subpoenas in a civil action. Any person who, without adequate excuse, fails to obey a duly served subpoena may be held in contempt of the Supreme Court.

3.  The hearing may be conducted informally but with decorum.

4.  The rules of evidence shall generally be observed in the conduct of the hearing, and all testimony shall be under oath or affirmation. Upon a showing of good cause to the Hearing Panel, testimony of any party or witness may be presented over the telephone.

5.  The proceedings shall be transcribed. Costs associated with the transcription shall be borne by the Commission but may be assessed by order of the Supreme Court against the neutral.

6.  Absent a showing of good cause, if the complainant fails to appear at the hearing, the Hearing Panel may dismiss the action for want of prosecution. Such a dismissal is final. If the neutral fails to appear, absent a showing of good cause, the hearing shall proceed.

7.  If, after conducting the hearing, the Hearing Panel determines that decertification or other disciplinary action is not warranted, it shall dismiss the matter. A decision to dismiss is final and not subject to review.

8.  If, after conducting the hearing, the Hearing Panel determines that decertification or other disciplinary action is appropriate, it shall make a written recommendation to the Supreme Court and provide a copy to the complainant and neutral. A copy of the transcript of hearing and all exhibits shall be filed with the Supreme Court.

9.  Within fifteen (15) days after the Hearing Panel submits its recommendation to the Supreme Court, the neutral or Counsel may file a response to the Hearing Panel's action. The Supreme Court shall then take such action as it deems appropriate.

F.  Reinstatement.

1.  A neutral who has been decertified may be reinstated as a certified neutral provided, however, no application for reinstatement may be tendered within two (2) years after the date of decertification.

2.  A petition for reinstatement, together with five (5) copies, shall be made in writing under oath and filed with the Board, with a fee which is twice the application fee.

3.  A petition for reinstatement shall contain:

a.  The name, age, residence and address of the petitioner;

b.  The offense or misconduct upon which the decertification was based, together with the date of such decertification; and

c.  A concise statement of facts claimed to justify reinstatement as a certified neutral.

4.  The Board shall refer the petition for reinstatement along with its recommendation to the Supreme Court.  The Supreme Court shall take such action as it deems appropriate.

VI.  TRAINING PROGRAMS

A.  Mediator and arbitrator training programs sponsored by the South Carolina Bar's CLE Division or any other provider of ADR programs may be approved by the Board. Applications for approval of training programs by such other providers must be accompanied by a $25 application fee. Approval of the program is valid for one year after which the applicant must reapply and submit the application fee.

B.  The Commission shall maintain at the South Carolina Bar a roster of approved training programs.

C.  An applicant or provider requesting approval of a mediator or arbitrator training has the burden of establishing that the training has met the requirements of the Rules for approval. That burden is satisfied only if the Board is convinced by clear and convincing evidence that the training program meets or exceeds the standards specified by the applicable Rules and the Commission.

D.  The Board's decision not to approve a mediator or arbitrator training program may be reviewed by the Court upon petition by the unsuccessful applicant.

VII.    EFFECTIVE DATE

These regulations will be effective upon adoption by the Supreme Court.

Adopted by Order dated June 27, 2002, and effective September 1, 2002.

Amended by Order dated October 15, 2003, effective immediately.

Amended by order dated September 4, 2008, and effective immediately