Frequently Asked Questions

Litigation | Mediation | Family Law | Veterans Benefits

 

Litigation

What is Ligation?

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Mediation

What is mediation?

Mediation is first and foremost a non-binding procedure, which means that a decision cannot be imposed on the parties. In order to reach a settlement, the parties must voluntarily agree to it. Unlike a judge or an arbitrator, the mediator is not a decision-maker. The role of the mediator is rather to assist the parties in reaching their own terms of settlement. Mediation appeals to parties as it offers parties full control over both the process of settling their dispute and the outcome of the process. Mediation is a confidential procedure. Confidentiality serves to encourage frankness and openness in the process by assuring the parties that any admissions, proposals, or offers for settlement will not have any consequences beyond the mediation process. They cannot, as a general rule, be used in subsequent litigation or arbitration.

How is mediation different from trial or arbitration?

In a mediation, the parties retain responsibility for and control over the dispute and do not transfer decision-making power to the mediator. The parties have the power and ability to determine the outcome.
In a trial or arbitration, the outcome is determined after the judge or arbitrator hears the facts, and applies the applicable law. A party's task is to convince the judge or arbitrator of its case. It addresses its arguments to the tribunal and not to the other side. In a mediation, since the parties, not the mediator, decide the outcome, a party's task is to convince, or to negotiate with, the other side, even though the mediator is usually the conduit for communications from one side to the other.

What are the benefits of mediation?

While mediation cannot guarantee specific results, below is a list of some of the benefits. Mediation generally produces or promotes:

  • Economical Decisions
 Mediation is generally less expensive when contrasted to the expense of litigation.
  • Rapid Settlements
 In an era when it may take a year, or longer, to get a court date, and multiple years if a case is appealed, the mediation process provides a timelier way to resolve disputes. When parties want to get on with business or their lives, mediation may be a means of producing rapid results.
  • Mutually Satisfactory Outcomes Parties are generally more satisfied with solutions they mutually agree on, as opposed to solutions that are imposed by a third party decision-maker, such as a judge.
  • High Rate of Compliance Parties who have reached their own agreement in mediation are generally more likely to follow through and comply with its terms.
  • Comprehensive and Customized Agreements
 Mediated settlements are able to address both legal and extralegal issues. The parties can tailor their settlement to their particular situation. Mediated agreements often cover procedural and psychological issues that are not necessarily subject to legal determination.
  • Greater Degree of Control and Predictability of Outcome Parties who negotiate their own settlements have more control over the outcome of their dispute. Gains and losses are more predictable in a mediated settlement than they would be if a case is tried or arbitrated.
  • Preservation of an Ongoing Relationship or Termination of a Relationship in a More Amicable Way Disputes may occur in the context of relationships that will continue over future years. A mediated settlement that addresses all parties' interests can often preserve a working relationship in ways that would not be possible in a win/lose decision-making procedure. Even if the parties’ terminate their relationship, mediation can make the termination more amicable.

How is mediation better than going to court?

Mediation will likely lead to a better outcome for the parties.

  • An apology or privacy may be more important than a litigated outcome.
  • The key is that it is the parties’ outcome. The parties decide together what solutions most appropriately meet their needs.
  • Mediation is likely to save the parties time and money. Cost related factors include the mediator's fees, the costs of counsel during the mediation process, and the costs of party attendance at the sessions, which are usually lower than the costs of going to trial.
  • Research shows that more than 90% of parties using mediation are satisfied with process, would use it again in the future, and would recommend it to others.
  • The parties have and wish to maintain a personal or business relationship. Where there is a business or personal relationship, mediation may reduce hostility and help find a resolution that benefits both sides.
  • Often there is more at stake than the surface monetary value of the claim.
  • Settlement may depend on information that parties want to keep confidential.
  • Mediation offers privacy and a chance to share information or emotions that a court may find irrelevant to the facts of the case.
  • Cases involving trade secrets or situations where parties may be intimidated by a formal, public court proceeding are appropriate for mediation.

Why do parties like mediation?

  • Mediation saves time.
  • Mediation saves money.
  • Mediation provides parties certainty, about the process and outcome, that a trial cannot.
  • Mediation can help a party who wishes to avoid trial for emotional or personal reasons.
  • Mediation assists a party wants to avoid trial because the risk of losing is not acceptable.
  • Mediation can provide be effective solutions when there is a need for complexity, flexibility or creativity in the desired solution.
  • Mediation allows for privacy and/or confidentiality in resolving the matter.
  • Mediation assists the parties in overcoming communication barriers.
  • Mediation allows the parties to vent, provide information, get information, and explain positions and interests.
  • Mediation assists parties who want to maintain or improve ongoing relationships between themselves.
  • Mediation allows parties to create partial solutions to the dispute to narrow the scope and intensity of the dispute.
  • Mediations offers the opportunity to examine positions and explore underlying interests.
  • Mediations can help parties who need assistance in managing the litigation of the case.
  • Mediation allows the parties to be invested in and own the solution.
  • Mediation allows the parties to keep control of the process.
  • Mediation allows the parties to keep control of the outcome.

Are there rules for mediation?

I have one rule for mediation: Be Respectful. It’s the one rule I’ve found that encompasses all issues that may come up during mediation. If we are all respectful, of each other (including the opposing party), and the process, then there is a greater likelihood of the parties settling the case. Further, our Supreme Court has created rules, which you can find online here.

What happens at mediation?

A mediation is not a hearing or an arbitration, and the mediator does not decide the merits of the case. A mediation is a meeting in which the mediator facilitates a process to help the parties resolve their differences and create a solution to settle their case without going to trial. Mediation is also helpful to parties who have a dispute who would like to find a resolution even before filing a lawsuit.

When and where does mediation happen?

Mediation can take place at my office, located at 410 Main St., Greenwood, SC 29646. It can also take place at another attorney’s office, or other office location. This will be decided when mediation is scheduled. Our office works with you, or your attorney, to schedule mediation on a date that all parties and their attorneys can attend.

How much does mediation cost and who pays for it?

The mediation fees are divided equally between the parties, unless the parties agree to another arrangement prior to or during the mediation. The fees must be paid at the conclusion of the mediation.

What happens after mediation?

After the mediation, the mediator has ten days to file a report with the clerk of court. This report is on a form that is approved by the court. The information provided does not include any confidential details, but instead reports to the court when and where the mediation was held, who attended, and whether or not the parties settled some or all of the issues. Sometimes, with the parties’ consent, the written settlement agreement is attached to the report.

If I make an offer the other side doesn't accept, can the other side use that against me in court?

No. Because mediation is confidential, no one, including the parties, can use the information exchanged during the process against any other party in a future court proceeding.

If we don't settle out case, can I subpoena the mediator to be a witness at trial?

No. The confidentiality applies to all people involved in the mediation, including the mediator. The mediator is not allowed and cannot be compelled to testify at court and reveal anything about the negotiations in mediation.

What can the mediator report to the Court?

After the mediation, the mediator has ten days to file a report with the clerk of court. This report is on a form that is approved by the court. The information provided does not include any confidential details, but instead reports to the court when and where the mediation was held, who attended, and whether or not the parties settled some or all of the issues. Sometimes, with the parties’ consent, the written settlement agreement is attached to the report.

At what stages of a dispute can mediation be used?

Mediation can be used at any stage of a dispute. Thus, it can be chosen as the first step towards seeking a resolution of the dispute after any negotiations conducted by the parties alone have failed. Mediation can also be used at any time during litigation or arbitration where the parties wish to interrupt the litigation or arbitration to explore the possibility of settlement.

Another common use of mediation is more akin to dispute prevention than dispute resolution. Parties may seek the assistance of a mediator in the course of negotiations for an agreement where the negotiations have reached an impasse, but where the parties consider it to be clearly in their economic interests to conclude the agreement (for example, negotiations for a lucrative business deals that benefits all parties).

What does confidentiality in mediation really mean?

Confidentiality is the bedrock of mediation, and I ensure the process is confidential. Below is how the South Carolina Rules of Alternative Dispute Resolution defines confidentiality. 

(a) Confidentiality. Communications during a mediation settlement conference shall be confidential. Additionally, the parties, their attorneys and any other person present must execute an Agreement to Mediate that protects the confidentiality of the process. To that end, the parties and any other person present shall maintain the confidentiality of the mediation and shall not rely on, or introduce as evidence in any arbitral, judicial or other proceeding, any oral or written communications having occurred in a mediation proceeding, including, but not limited to:(1)  Views expressed or suggestions made by another party or any other person present with respect to a possible settlement of the dispute;
(2)  Admissions made in the course of the mediation proceeding by another party or any other person present;
(3)  Proposals made or views expressed by the mediator;
(4)  The fact that another party had or had not indicated willingness to accept a proposal for settlement made by the mediator; or
(5)  All records, reports or other documents created solely for use in the mediation.

(b)  Limited Exceptions to Confidentiality. This rule does not prohibit:
(1)  Disclosures as may be stipulated by all parties;
(2)  A report to or an inquiry from the Chief Judge for Administrative Purposes regarding a possible violation of these rules;
(3)  The mediator or participants from responding to an appropriate request for information duly made by persons authorized by the court to monitor or evaluate the ADR program;
(4)  Threats of harm or attempts to inflict physical harm made during the mediation sessions; and
(5)  Any disclosures required by law or a professional code of ethics.

(c)  Private Consultation/Confidentiality. The mediator may meet and consult individually with any party or parties or their counsel during a mediation conference. The mediator without consent shall not divulge confidential information disclosed to a mediator in the course of a private consultation.

(d)  No Waiver of Privilege. No communication by a party or attorney to the mediator in private session shall operate to waive any attorney-client privilege.

(e)  Mediator Not to be Called as Witness. The mediator shall not 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 by the mediator while serving in that capacity shall be confidential.

Family Law

Adoption

In South Carolina, can a birth mother revoke her consent or is there a waiting period for revoking consent after the document is signed?

In South Carolina a birth parent cannot revoke their consent except under limited circumstances and the burden to prove those limited circumstances is high. It is best to speak with an attorney before signing a consent to terminate parental rights and consent to adoption.

What is the adoption tax credit?

Tax benefits for adoption include both a tax credit for qualified adoption expenses paid to adopt an eligible child and an exclusion from income for employer-provided adoption assistance. The credit is nonrefundable, which means it's limited to your tax liability for the year. However, any credit in excess of your tax liability may be carried forward for up to five years. The adoption credit is calculated on IRS Form 8839 Qualified Adoption Expenses.

What is a home study?

State law dictates whether an individual social worker, a private licensed child placing agency, or a public social service agency may perform the home study. The process is designed to evaluate the adoptive parents to assure that there is nothing in their homes or background which would be contrary to the best interests of the child. It is an independent investigation to verify one’s suitability as an adoptive parent and includes criminal and child abuse history searches.

What are the types of domestic adoption?

There are three types of domestic adoptions: Private Agency, Public Agency and Independent (sometimes called private or parental placement).

How long will private adoption take?

There is a wide variety of waiting periods dependent upon a host of controllable and non-controllable factors. Generally, the average waiting period to be matched with a birth mother expecting a child is 12 – 24 months. Waits can be dramatically shorter or longer depending on individual situations and client’s specified parameters for adoption such as gender preference, race, age of adoptive parent, number of children in family, financial limitations, and state of residence of adoptive parents and birth parents.

What is Agency Adoption?

Agency adoption is an adoption that is facilitated by a licensed child placing agency in the State where you reside. Agency Adoptions are conducted through either public or private agencies. Residents of South Carolina may work with public and private agencies located in South Carolina or anywhere in the United States. In Agency adoptions, the birth parents are placing the child with the Agency, which then places the child with the adoptive couple. The birth parents can still select the adoptive parents or they can request that the Agency select a family.

Where do we begin?

The first step to building your family through adoption or assisted reproduction technology is to sit down with an experienced attorney who can explain all of your options and answer your questions.

How much does Adoption cost?

The type of adoption pursued determines the cost of an adoption. Public Agency adoptions tend to be the least expensive and sometimes do not cost the adoptive parents anything after subsidies, tax benefits and other factors. A private agency or independent adoption can cost between $10,000 and $40,000. Some of the factors that impact the cost of an adoption are whether the birth mother has medical insurance, where the adoption is being finalized, interstate requirements and the role of the birth father.

What information is provided to an expectant parent about me?

The birth mother, and sometimes the birth father compile a lengthy family, social and medical history. Following a match, adoptive parents may obtain medical records from the OB/GYN and from the hospital as soon as practical given the doctor or hospital’s cooperation. If requested and authorized by the birth family, criminal records or other third party document may be obtained. No one can guarantee the health or medical history of a baby.

Does a surrogate have to consent to an adoption?

Depending on the type of surrogate used, one or both intended parents may need to proceed with an adoption and obtain the surrogate’s consent.

Assisted Reproductive Technology

Why do I need an attorney for my donation or surrogacy plans?

When families plan to have children through the Assisted Reproduction process, such situations allow families to be formed with the assistance of physicians and fertility clinics. Typically, the medical technology has developed faster than the laws in most states, and when the medical process is complete and a child is born, it’s critically important to make certain that the legal rights and status of all parties is clear. The ones who intended to be parents of the child need to be recognized as parents, and donors and surrogates, who wanted to help but had no intention of being a parent, need to be certain they have no such parental responsibilities. Each state and jurisdiction varies a great deal on how legal parentage is established in the intended parents, and how a donor and a surrogate insure that he or she have no parental obligations or responsibilities for any child born through the assisted reproduction procedure.

For these reasons, most medical clinics that assist families with ART procedures require a legal agreement between the parties to outline their intent as to who will be the parent or parents of a child born as the result of the medical procedures, who will have the rights and responsibilities as parents of the child, and who will not have such rights. It is important to clearly state each party’s rights and responsibilities in a contract.

Will our surrogate have medical insurance?

Usually insurance will cover pregnancy and delivery, with relevant deductions or co-pays. You will know when matched with a surrogate what type of insurance, if any, she has. There are many insurance plans that now exclude a surrogate pregnancy. The good news is that there are also plans exclusively for a surrogacy arrangement that will insure coverage.

What is difference between traditional and gestational surrogate?

A gestational carrier or gestational surrogate is a woman who carries a child conceived through the process of in-vitro fertilization utilizing the egg and sperm of the intended parents, an egg donor, and/or a sperm donor. This is different from a traditional surrogate who supplies the egg and is the biological mother of the child she carries and delivers. In the latter case, pregnancy is usually achieved utilizing the intrauterine insemination.

What is third party reproduction?

Third party reproduction enables an individual the chance to have a child that would otherwise be impossible. Third party reproduction can include donor sperm, donor eggs, donor embryo, surrogacy, and/or a gestational carrier.

Can we be placed on the birth certificate if using a Surrogate?

This will completely depend on the state in which you live and/or the state where the surrogate delivers, as well as the type of Surrogacy involved (traditional or gestational). Your attorney should advise you what will happen with the birth certificate and what procedure is involved at the time you are matched with your surrogate.

Does a surrogate have to consent to an adoption?

Depending on the type of surrogate used, one or both intended parents may need to proceed with an adoption and obtain the surrogate’s consent.

Grandparents

Do I have a right to visitation with my grandchildren?

There is no single "right" answer to this question. Each family situation is different and the circumstances may or may not warrant petitioning the Court for visitation. The Due Process Clause of the U.S. Constitution grants parents a protected liberty interest in the care, custody, and control of their children. However, there is a South Carolina statute that addresses grandparent visitation that aims to meet the constitutional requirements while giving the court the ability to award grandparent visitation in certain situations. 

Can I get custody of my grandchild?

There are some situations in which grandparents may seek custody of their grandchild. If grandparents can show by "clear and convincing evidence" they are the "de facto" custodians of the minor child, there is some chance the court would grant them custody of the minor child. To show they are "de facto" custodians, grandparents need to show they are the primary caregiver and financial supporter of the child for a certain amount of time. The time period varies depending on the age of the child. Grandparents must also show the parents are unfit or that other compelling circumstances exist. There are numerous factors the court considers and like any case involving custody, the court will always consider the child's best interest paramount. Grandparent custody can be complicated and it is recommended you consult with a licensed attorney before seeking custody.

The Department of Social Services (DSS) removed my grandchildren from their parents' home. Can my grandchildren live with me instead of a foster home?

There's a possibility the grandchildren could live with the grandparents but it's not a guaranteed right. An attorney who's handled cases with DSS before can advise you about the possibility of grandchildren living with grandparents instead of a foster home. 

Collaborative Divorce

Who chooses the collaborative process?

Collaborative divorce is for individuals who want to remain in control of the decisions regarding their divorce, instead of leaving them up to the judge. It is for those who want to unwind their marriage in a way that will protect their children, retain their self-respect, conserve their finances, and allow them to establish a practical relationship with their partner. When a couple chooses the collaborative process, each person pledges to reach an agreement before going to court to file the divorce paperwork, agrees to honest and full disclosure of all information, and to participate fully in the process for the benefit of all adults and children involved.

What does one actually do in the collaborative process?

The process itself includes a series of meetings where every issue needed to reach a durable settlement agreement is addressed and discussed. A team of professionals, such as mental health professionals, child specialists, and financial neutrals work with you and your spouse to create a resolution that addresses everyone’s needs.  Your team will aid you in dealing with emotional difficulties and the changes associated with divorce so you can successfully transition from married to single.  Collaborative divorce is often less expensive than a conventional divorce and offers a dignified approach to end a relationship.  Choosing the collaborative process should especially be considered when children are involved and the parents will continue to have contact with each other.

How did collaborative divorce get started?

Collaborative divorce came about when lawyers finally figured out that divorce is not a legal issue. Divorce is a personal relationship issue that has legal attachments. It was 1990 in the city of Minneapolis Minnesota that the lawyer Stuart Webb founded collaborative divorce. After fifteen years of practicing divorce law, he decided to do something about all the roadblocks and frustrations he kept running into by settling divorce issues in court. Webb said that he would no longer go to court for the clients of his who were to be divorced. He said that he would help them settle and negotiate their problems outside the courtroom only – where the couple could get together and work out their problems – and that if they decided to go to court over the matter, he would withdraw his aid and hand over the case to a lawyer who had a more litigious temperament.

How is collaborative divorce different than mediation?

Collaborative divorce is not the same as divorce mediation. The terms cannot and should not be used interchangeably. In mediation, there is a neutral party, the mediator. In collaborative divorce the parties, though working collaboratively to achieve a negotiated settlement, are not neutral. Each lawyer provides his or her client with independent legal advice regarding any proposed agreements.

Why would someone choose Collaborative Divorce?

  • You each have more control over the outcome. You can voice your opinions and know that you will be heard.
  • You get to agree to settlement issues based on compromise and fair play instead of having a judge make the final decisions that significantly affect your lives.
  • It is less expensive than litigation. Attorney fees and court costs can add up quickly.
  • The process takes less time than litigation because you chose the time and place you meet instead of dealing with the timetable of busy family courts.
  • There is less stress and anxiety involved because you are playing a more active role in the divorce.
  • The goal is to reach a settlement before anyone files papers in divorce court. Once a couple accepts a settlement, then a legally binding agreement is written and signed by both parties.
  • You know that you worked together to make life easier for everyone. This is especially important if children are involved.

Who Benefits from Collaborative Divorce?

Collaborative divorce is not for everyone or every situation. It requires that those involved be committed to working with and not against the other party in order to achieve results. Those persons who are able to accept the separation, willing to learn or manage their emotions, interested in the well being of the other side and committed to the process are good candidates for collaborative. Those persons involved in collaborative divorce should be able to take the long-term view and be thinking of the future and the maintenance of a relationship with the other side.

Those involved in collaborative law must understand that although the intent of collaborative law is to be successful in achieving an agreement, it may not be successful. In this vein, it must be remembered that if collaborative law fails, there will be the added time and expense of hiring a new lawyer and taking the matter to court.

How can a reluctant spouse be encouraged to consider Collaborative Divorce?

To be effective, both parties must welcome the advantages of the Collaborative process and want to use it to resolve their divorce issues. Encourage your spouse to learn more about Collaborative process. Most spouses seem reluctant for the simple fact that he or she has never heard of the Collaborative process. Not all divorce attorneys discuss with their clients the various options of alternative dispute resolution available in South Carolina. Unless individuals do their own research, they are not well informed.

Can the Collaborative model be used if one party has already filed for divorce?

Generally yes. However, proceeding in this manner depends on how the practitioners want to approach the issue. Some may ask the divorce be dismissed so the Collaborative process can move forward without the inherent coercion of litigation and on-going scheduling pressures imposed by the court. Alternatively, they may seek a stay from the court, taking the case off the court’s docket and some practitioners may try to work together to resolve differences without dismissing the divorce action. Traditionally and ideally, Collaborative practice takes place prior to the filing for divorce. A complaint for divorce would be filed only after there is a written resolution of all the divorce issues.

Veterans Benefits

How do I apply for veterans benefits?

To file for the veterans benefits you need, you can:

What information do I need when applying for veterans benefits?

When applying for veterans disability benefits, the Department of Veterans Affairs requires that you document the following in your application:

  • Dependency records (marriage and children’s birth certificates)
  • Discharge and separation papers (DD-214 or equivalent)
  • Employment history (W-2, or other documentation)
  • Medical evidence supporting your disability (doctor and hospital records)

What benefits are available to veterans?

As a veteran, a veteran’s survivor, or a veteran’s dependent, you may be eligible for a variety of veterans disability benefits, including:

How do I get veterans benefits?

To get veterans benefits, you must meet the VA’s strict guidelines for eligibility. The VA will consider you or your family members as qualified recipients of veterans disability if you are a:

  • Veteran

As a veteran, you may be eligible for compensation, pension, or other benefits if you have a service-related disability and you were discharged under other than dishonorable conditions.

  • Veteran’s dependent

Your spouse, former non-remarried spouse, children, and parents may be considered beneficiaries of certain veterans benefits.

  • Veteran’s survivor

The surviving spouse, child, or parent of a deceased veteran may be considered eligible for survivor benefits, which include burial benefits, death pension, death gratuity payment, dependency and indemnity compensation, and other dependent’s benefits.

Why should I file an appeal?

No matter why you were denied by the VA, you have the right to request that the Board of Veterans’ Appeals (BVA) review the decision on your claim. You can file an appeal for any reason; however, most people file an appeal because they were either:

  • denied benefits for disabilities they believe began in service,
  • or they believe their disabilities are more severe than the VA rated them.