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Jack R.
Jack R., Attorney
Category: Legal
Satisfied Customers: 6147
Experience:  OH/TX Practicing Attorney focusing on Family Law, Foreclosure, Landlord-Tenant Issues.
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SC divorce question Brother going through a nasty divorce

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SC divorce question

Brother going through a nasty divorce and has a nonresponsive attorney...can you help me understand the following scenario:

Received notification that there is a mediation with a judge scheduled for May (after previous mediation with a mediator was unsuccesful and they were unable to agree on financial settlement among themselves.) Then received another notification that a final hearing was scheduled for 2 consecutive days in June, that their case was a "B" case meaning that if the "A" case went to trial then their date would be moved. My question is: what is the purpose of having mediation with a judge if it still requires a "long" final hearing court date? Isn't the mediation binding? Shouldn't they just then be able to do the formality of having a hearing after the mediation?

Thank you for choosing Just Answer.

 

Mediation is not always successful. A mediation is a negotiation where the parties discuss the issues confronting them and try to work out a resolution.If the parties cannot reach agreement at the mediation then it is their right to have a formal trial.

 

At a trial the parties are entitled to a bring witnesses present evidence and ask the court for a ruling. Courts prefer having cases worked in mediation it reduces the number of cases where judges have to make decisions on the outcomes. Mediation allows the parties to have some control over the outcome..

 

The Court when it schedules a final hearing plans for the worst. This is what you called a nasty divorce so if a settlement is not reached during mediation a 2 day trial may be necessary. If a settlement is reached the trial date may be canceled/rescheduled being reduced to a short hearing to enter the settlement into the court record.

 

When a settlement is reached there may need to be some time alloted for the paperwork (settlement agreement and Journal Entry) to be completed. The parties may also want some time to assess the final agreement.

 

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This communication does not establish an attorney-client relationship.Information provided here is not legal advice. Rather it is simply general information.

Customer: replied 3 years ago.
What is the difference between having a mediator and a judge present during mediation then? Why do they have to do this twice?

The trial judge does not necessarily mediate the session with the parties. Judges mediate disputes all the time. They do this during pre-trials with attorneys. There is a different mindset in a mediation and a trial. A mediation does not necessarily have to comport with how a case is decided at trial. For example the parties can decide an equitable split is 70/30 where at trial the judge might rule closer to 50/50. At the mediation a judge could accept the parties decision that 70/30 is OK. The judge just directs the negotiation and documents the result.

 

Having a judge in the room acting as a mediator will cause the parties to more seriously work on resolving the issue. In one case I was involved with the judge stated "if you can't work out a settlement neither of you is going to like what I am going to order". The judge basically used his status to encourage a settlement. Since the first mediator was unsuccessful the judge may provide greater impetus/urgency to resolve the matter.

 

If you found this answer useful please press the appropriate quality of service button of 3 or greater. This is needed so I can get credit for my answer. If you have follow up questions please ask.

 

This communication does not establish an attorney-client relationship.Information provided here is not legal advice. Rather it is simply general information.

Customer: replied 3 years ago.


is it usually the same judge who resides at the mediation as at the trial?

In cases I have had ( not in SC) it has always been a different judge. I have had trial judges work with attorneys not the parties to get a settlement agreement completed.
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