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Mediation and Cooperative Law
In South Carolina, one attorney cannot represent both parties in a separation/divorce/custody negotiation. However, one or both spouse(s) are permitted to proceed pro se (without an attorney). Briefly, the distinction between two non-litigious processes --mediation and cooperative law-- is as follows:
Mediation involves hiring one neutral mediator to work with both parties as a facilitator. The mediator can offer opinions but by law is not permitted to give legal advice to either person.
The mediator will not prepare legal documents aside from the final Agreement, so the parties need to be prepared to do that as themselves, as self-represented litigants (forms for this purpose are available free of charge at https://www.sccourts.org/forms/indexSRLdivorcepacket.cfm under the "Self-Represented Litigant Simple Divorce Packets" tab) or to retain at least one attorney for the court process. We generally recommend that each person consult with an attorney in advance and/or take the proposed agreement from mediation and run it past a lawyer before finalizing. Mediation can be the least expensive option, unless concerns come up during mediation and/or when the parties consult extensively with or retain attorneys.
"Cooperative Law" is a non-litigious process in which parties are committed to working out an Agreement openly and fairly without need for a judge to referee or make their decisions for them. This means NO filing of motions, NO formal discovery, NO subpoenas, NO depositions, NO contested hearings.... NO mud-slinging.
One party or both parties may be represented by (separate) counsel. Sometimes neutral financial advisors or co-parenting specialists are brought in to assist in reaching a final agreement. The nonprofit Cooperative Law Association in Charleston (https://charlestoncooperativefamilylaw.org) is a network of attorneys and other professsionals who are all independent but regularly follow the Cooperative model; this is a good place to learn about the process and look at Cooperative attorney profiles. The attorneys in this model advise their clients, file the court documents and appear in court with their client(s) to finalize the agreement legally and to obtain the Order of Divorce/Approval of Agreement in a 15-minute uncontested hearing.
Both Cooperative Family Law and Mediation share many advantages over litigation, including:
- Children: If you're going through a divorce or separation, these processes generally help promote healthy co-parenting relationships and avoid the trauma that litigation often causes for children (even adult children).
- Confidentiality: These processes are confidential, so there are no negative affidavits or other filings in the court record.
- Convenience: You'll schedule negotiation meetings and the final court hearing to approve your agreement at times that are convenient for everyone, instead of having to appear at a court-ordered time for multiple lengthy contested hearings.
- Cost savings: The Cooperative and Mediation processes are generally significantly less expensive than the cost of litigation.
Disclaimer: Material presented on this website is intended for information purposes only. It is not intended as professional advice and should not be construed as such.
