SC Supreme Court: Mediator may respond to disciplinary inquiries

SUMMARY

• South Carolina Supreme Court issued declaratory judgment on mediator confidentiality under SCADR Rule 8
• Court ruled mediators may respond to Office of Disciplinary Counsel inquiries
• Case involved attorney suspected of intoxication during mediation proceedings
• Court found observations of demeanor are not protected mediation communications

The South Carolina Supreme Court held that nothing in Subsections (a) or (g) of Rule 8, South Carolina Alternative Dispute Resolution Rules (SCADR), prohibits a mediator from responding to an investigative inquiry from the Office of Disciplinary Counsel (ODC). The court issued a declaratory judgment finding no conflict between the SCADR confidentiality provisions and the Rules of Professional Conduct.

The four-page opinion is Anonymous Mediator/Attorney v. South Carolina Office of Disciplinary Counsel.

The petitioner, an attorney and certified mediator, conducted a mediation involving an attorney whose behavior raised concerns about his ability to competently represent his client. ODC received a complaint and, during its investigation, requested a written statement from the petitioner describing the attorney’s demeanor. The petitioner declined, asserting that Rule 8(g) of SCADR imposed a blanket prohibition against a mediator disclosing anything that occurred during a mediation.

ODC argued that its inquiry did not involve communications related to the substance of the mediation, but rather concerned observations of the attorney’s demeanor—specifically whether he appeared intoxicated. Since such observations are not “mediation communications,” ODC contended, they are not protected by confidentiality under Rule 8.

The court agreed, holding that Rule 8(g) applies only to matters where confidentiality has attached. Because the requested information concerned non-substantive conduct rather than mediation communications, the mediator was not barred from cooperating with ODC’s investigation.

EXTERNAL LINKS

• South Carolina Judicial Branch
• South Carolina Bar
• South Carolina Office of Disciplinary Counsel