Sunday, September 3, 2017

with Addendum on Sept. 4

Since news of the mediation between the two sides broke on September 1, there have been numerous questions about what mediation is and what it may involve.  We know that both sides have agreed to mediation, that the U. S. District Judge Richard Gergel, handling the case of vonRosenberg v. Lawrence, has ordered mediation, and that Judge Joseph Anderson, senior U.S. District Judge in Columbia, has been assigned as the mediator.  

Fortunately, the U.S. District Court in South Carolina has posted on the Internet its very clear and helpful guidebook of rules including much information on the process of mediation:  "Local Civil Rules for the United States District Court District of South Carolina (with revisions through January 2012)." Find it here .

The section on mediation is found on pages 17 to 22.

I am not a lawyer or legal expert, but these are some of the points in these pages that seemed most important:

---DEFINITION. 16.04 (A). "An informal process in which a third party mediator facilitates settlement discussions between parties. Any settlement is voluntary. In the absence of settlement, the parties lose none of their rights to trial by judge or jury."

Important points --the settlement is voluntary; --if the mediation fails, litigation continues.

---FIRST  CONFERENCE. 1607. (A). Within 30 days of the Mediation Order. In this case, by September 29, 2017.

---COMPLETION. 16,07 (A). Mediation to be completed within 30 days after the first mediation conference. In this case, by October 29, 2017.

---CONTINUING LITIGATION. 16.07 (B). Mediation does not delay proceedings in court except by court order.

---PRIVACY. 16.07 (C). Mediation is in private and is confidential.

---ATTENDANCE. 16.08 (A). Attendance is required of the parties. Penalties may be assessed for non-attendance (16.09).

---AGREEMENT. If agreement is reached, it is to be put in writing and signed. This is to be done within 14 days of the mediation conference of agreement.

---MUTUAL CONSENT. 16.10 (B) (8).  All agreements are to be reached by mutual consent of the parties.

---FAILURE. 16.10 (G). The mediator may declare an impasse and end mediation. The mediator alone may make this determination.

Again, I am not a lawyer, but it appears to me from the rules booklet that we may expect the mediation to begin by September 29 and end by October 29. By my calculation, unless there is some time extension, counting the 14 days after agreement for a final written document, we should know if there is to be a mediated settlement by November 12, 2017 at the latest. All communications between the parties will be private and confidential. If they reach mutual agreement, they will sign the deal. If they fail to reach agreement, the mediation ends and the litigation continues in court. This is how it appears to me. I encourage you to read the pages and reach your own understanding of the court rules.

At any rate, this court guidebook on the Internet greatly clarifies for us laypeople what the mediation process is and how it works. Mediation seems to be a reasonable way to try to settle differences, but it does not force or require a settlement. Mediation may fail, and if it does, the court litigation goes on.

One other point, the DSC lawyers said in their September 1 motion for time extension that all issues of both state and federal courts were on the table in the mediation. I can only wonder what effect a decision of the state supreme court on a rehearing would have on the mediation providing the mediation is ongoing.

ADDENDUM (Sept. 4):   The Episcopal Church in South Carolina has publicly announced its participation in the mediation. Mr. Thomas Tisdale, the chancellor of the diocese, has confirmed that both state and federal issues will be included in the talks, just as Mr. Runyan, the DSC lawyer. had said on Sept. 1. In the ECSC announcement of today linked below, you can find the Mediation Order and Runyan's comment in the first designated link "motion for an extension."

See the ECSC announcement here .