Civil matters in South Carolina – with limited exceptions – are required to submit to alternative dispute resolution (“ADR”). The most common methods of ADR are mediation and arbitration. Although these two terms are sometimes used interchangeably by laypersons, they are fundamentally different ways of resolving disputes outside of court. It is important to understand the distinctions between mediation and arbitration so you can know what to expect when you engage in ADR.

Mediation is a process by which a neutral third-party – the mediator – facilitates discussion, negotiation, and ideally settlement between the parties. Critical to the process, the mediator does not take sides or make decisions for the parties. Rather, the mediator’s job is to help the parties find common ground, compromise where possible, and achieve a mutually beneficial outcome without going to trial.

On the other hand, arbitration involves a neutral party – the arbitrator – actually making a decision for the parties on some aspect, or even the outcome, of the dispute. Arbitration awards are often, but not always, binding.

Mediation, along with other forms of ADR, is governed by rules that have been established and are enforced by the South Carolina Supreme Court. Rule 3 requires most civil matters to submit to the process and allows the parties to select the mediator they will engage. Parties can ask that cases be exempt from mediation in certain limited events, such as the physical condition of a party.

Rule 5 controls the mediation conference. It requires that the mediation shall take place in the county where the dispute was filed, at a site designated by the mediator or agreed upon by the parties. Most mediations must be completed within 300 days of the lawsuit being filed. Generally, a case will not appear on the trial docket until mediation has occurred.

The mediation conference usually begins with the mediator explaining the rules governing the process to the parties and their lawyers. The mediator will meet privately with the parties and their counsel to better understand the issues involved and to begin the process of facilitating a resolution of the dispute.

Under Rule 6, the following individuals must attend mediation:

• The mediator;
• All individual parties, or a representative of a corporate party, insurance company, or governmental agency who has full authority to settle the claim; and
• The parties’ attorneys (if any).

Attending a mediation can be challenging for corporate parties, which must have a representative appear in person for the mediation; however, the parties and the mediator can consent to exceptions to this rule, such as allowing a representative to appear by telephone or Zoom conference. The court can also allow such exceptions. If you have questions or concerns about these attendance requirements, ask a knowledgeable South Carolina mediator.

Finally, under Rule 8, discussions that take place during mediation are confidential. Put simply: what happens in mediation stays in mediation. Parties cannot disclose offers to settle or other statements that are made in the mediation context, including statements made in any pre-mediation written submissions. Information and documents exchanged during the conference are also protected. The rule covers any communications about mediation. That means, for instance, parties cannot blog or post about the mediation on social media.

The confidentiality requirement is fairly broad. Anyone who is at any time present in mediation, from start to finish, is required to maintain the confidentiality of the process. That includes the participants above as well as other individuals such as paralegals who may be allowed in the room. One of the primary reasons for this rule is to promote candor in the proceedings, thereby inviting frank discussions about cases being mediated, to protect the integrity of the mediation process, and to dove-tail with evidentiary rules, such as Rule 408, which make settlement discussions inadmissible in most instances.

If the case cannot be resolved through ADR, it proceeds to trial.

The mediators at Gaffney Lewis have facilitated the mediation of hundreds of cases in South Carolina and are standing by to help.

Mediation is complicated, and there are numerous other rules that guide the process. The mediators of Gaffney Lewis, LLC, are also litigators with extensive experience in South Carolina civil matters. That allows us to bring a balanced approach, thoroughly understand the issues at stake, and provide a fair and neutral mediation for both sides. If you have a pending civil matter and require a mediator, give us a call today to learn more.

Facebook, Twitter, Instagram, and other social media platforms have the potential to connect people all over the world. But social media can become problematic where it intersects with the workplace. When one of your employees posts something online, it’s not always clear whether that person is speaking for him- or herself, or purporting to speak as a representative of your company. Still other employees are unclear as to what is and is not acceptable to post on their own time and on their own, private accounts.

The ubiquity of social media requires that employers adopt and enforce policies that provide clear guidance to employees. Balancing the interests of employees (e.g. freedom of expression and privacy) and the employer (professionalism and safeguarding brand and reputation) isn’t always easy. That’s where you need the dedicated employment lawyers of Gaffney Lewis, LLC. We can help your organization craft clear, comprehensive, and fair employment policies that protect these seemingly competing interests.

There are a few general principles to keep in mind when drafting an employment social media policy:

Make sure your employees know and understand the social media policy up-front. Before a new hire starts working, that individual should read the social media policy and sign an acknowledgment that she understands it. This is true for any policy, of course. For existing employees, adopting or revising a policy should be announced well in advance, and employees should acknowledge receipt and understanding of the new or revised policy. This keeps everyone on the same page and leaves no room for excuses if someone breaks the rules.

Prohibit posting on company time. This is a fair, objective rule that is broad enough to cover social media activity and time wasters like calling or texting while on the clock. Employees should not take personal calls on company time, so employees shouldn’t be allowed to engage on social media when working and should save these sorts of things for breaks or private time.

Encourage employees to use common sense. What an employee posts on her own private account is usually not worth policing, unless the material is so outrageous or offensive that it calls the employee’s judgment into question or risks damage to the company’s brand or reputation. Employers should encourage employees to always use common sense in posting. Employees should also be aware that even the strictest privacy settings won’t ensure that outsiders cannot see the posts. This is especially true if employees add each other as “friends” on Facebook, follow one another on Twitter, etc.

Along these same lines, employees should remember there’s a difference between what’s posted on a private account and what’s posted in a public group, page, or other forum. They should always use discretion when the content can be seen by everyone. Also, employees should be reminded that even if they post to a private account, others can screen-shot or otherwise capture the post and it can be spread.

Remind employees that consensual interactions are fine…usually. This rule applies generally to workplace conversations as well. Attempting to monitor all interactions between employees and others on social media is likely to be a drain on company resources – in most cases. For instance, two employees conversing with each other on social media about a hot-button political topic is probably okay as long as both are willing participants. Where the line gets crossed is when one employee bullies another online or tries to discuss something when others have disengaged. The same is true of real-life interactions and non-controversial topics: unwelcomed communications can amount to harassment.

The one caveat here is subject matter that’s so offensive that consent doesn’t excuse it. A workplace conversation is unacceptable if it involves racially or sexually offensive language, threats, hate-speech,

or other forms of bullying, even if the people actually talking are willing participants. Employers should apply that same rule to social media.

Ensure that employees do not unintentionally represent the company. Make sure your employees know how important perception is. If employees attend a widely-publicized political rally wearing the company t-shirt, the employer can expect some angry responses. The same is true of social media content. Employees need to avoid even the appearance of speaking for the business when expressing their personal views.

Disclaimers can help, but aren’t perfect. Encourage employees to post disclaimers on their social media accounts that state that they speak for themselves and not their employer. But remember, even disclaimers don’t excuse excessively offensive statements or conduct. That’s because whether the employee uses a disclaimer or not, what they do in their personal lives can affect the company’s reputation. It goes back to a rule already mentioned above: the employee still needs to use common sense.

Point, don’t post. You want your employees to spread positive news about the company. Yet they need to make sure they do so in the right way. It’s better to link content hosted on the company’s website than for them to write up their own version of it. Not doing so could risk copyright issues or misstatements about the actual nature of the content. The material hosted on your company’s website has likely already been vetted from a legal perspective and through the company’s marketing channels, so employees should be aware that such content should speak for itself.

These principles are a great way to begin drafting your social media policy. But it’s just the beginning. The best policies are comprehensive, tailored to the specific values of each individual company, and in line with any and all legal requirements.

If you’re in need of a social media or other employment policy, or you wish to revise one, the trusted legal counsel of Gaffney Lewis, LLC is ready to help. Call us today.