The Supreme Court of South Carolina
In re: Amendments to Alternative Dispute Resolution Rules,
Appendix G, Part IV, South Carolina Appellate Court Rules
The South Carolina Commission on Alternative Dispute Resolution has proposed several amendments to the regulations contained in Appendix G to Part IV, SCACR, which govern discipline for third party neutrals. Specifically, the proposed changes allow for a three-member hearing panel and grant the Commission Chair the authority to appoint members of a hearing panel. Additionally, the amendments confirm that three members of the Board of Arbitrator and Mediator Certification constitute a quorum in matters of decertification, discipline and processing of complaints. Finally, the changes add two new subsections to Section V(D) of Appendix G, which concern access to disciplinary information, communications among parties, and immunity.
Pursuant to Article V, § 4, of the South Carolina Constitution, we hereby amend Appendix G to Part IV, South Carolina Appellate Court Rules, as set forth in the attachment to this Order.
The amendments are effective immediately.
IT IS SO ORDERED.
s/Jean H. Toal C.J.
s/John H. Waller, Jr. J.
s/Costa M. Pleicones J.
s/Donald W. Beatty J.
s/John W. Kittredge J.
Columbia, South Carolina
September 4, 2008
REGULATIONS FOR THE COMMISSION ON ALTERNATIVE DISPUTE RESOLUTION
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V. SOUTH CAROLINA BOARD OF ARBITRATOR AND MEDIATOR CERTIFICATION
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D. Decertification, Discipline and Processing of Complaints of Misconduct.
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8. If probable cause exists and the matter cannot otherwise be resolved, the Board shall notify the Commission Chair who shall appoint three (3) members of the Commission, who have not been involved previously in the matter, as a Hearing Panel. Neither the Chair of the Commission nor the members of the Board shall participate as members of the Hearing Panel. The Commission Chair shall designate one member as Chair of the Hearing Panel. The Hearing Panel shall schedule a hearing in accordance with the ADR Rules and these Regulations. The Hearing Panel may petition the Supreme Court to temporarily suspend a neutral’s certification pending outcome of the hearing. Counsel shall prosecute the matter.
9. In matters of decertification, discipline and processing of complaints, three (3) members of the Board or the Hearing Panel shall constitute a quorum. In the event that members of the Board or Hearing Panel disqualify themselves in a pending matter leaving less than a quorum, the Commission Chair shall appoint ad hoc members to restore the Board or Hearing Panel to full membership in that matter. Decisions and recommendations shall be by majority vote.
10. Access to Disciplinary Information.
a. Except as otherwise provided in the ADR Rules and these Regulations or ordered by the Supreme Court, all complaints, proceedings, records, information or orders relating to an allegation of misconduct shall be confidential and shall not be disclosed to the public. While the matter remains confidential, the members of the Board, the ADR Commission, the staff of the Commission, the members of the Supreme Court and the staff of the Supreme Court shall not in any way reveal the existence of the complaint except to persons directly involved in the matter and then only to the extent necessary for the proper disposition of the matter. A violation of this provision may be punished as a contempt of the Supreme Court.
b. When charges are filed regarding allegations of misconduct, the charges and any answer shall become public 30 days after a hearing panel is appointed. Thereafter, except as otherwise provided in the ADR Rules and these Regulations or by the Supreme Court, all subsequent records and proceedings relating to the misconduct allegations shall be open to the public inclusive of any sanction imposed after the filing of charges. If allegations of incapacity are raised during the misconduct proceedings, all records, information and proceedings relating to these allegations shall be held confidential.
c. The Board and/or Commission may, however, disclose information at any stage of the proceedings:
i. When the chair, vice chair or a panel of the Commission has determined that there is a need to notify another person to protect that person or to notify a government agency in order to protect the public or the administration of justice;
ii. To appropriate law enforcement officials when the chair, vice chair or a panel of the Commission determines that it is in possession of reliable information indicating that a person has violated the criminal laws of this state, any other state, the District of Columbia or the United States;
iii. Upon waiver in writing by the neutral; or
iv. To the appropriate disciplinary authority in any jurisdiction in which a neutral is admitted to practice law or any other profession or has applied for admission to practice law or any other profession concerning a matter where there is evidence the neutral committed misconduct under the alternative dispute rules or regulations of that jurisdiction or where a neutral receives any sanction under these regulations.
d. In order to protect the interests of a complainant, witness, third party or neutral, the hearing panel may, upon application of any person and for good cause shown, issue a protective order prohibiting the disclosure of specific information otherwise privileged or confidential and direct that the proceedings be conducted in a manner to preserve the confidentiality of the information that is the subject of the application.
e. Either party may disclose in proceedings before a hearing panel statements and other evidence gathered prior to the matter becoming public after a filing of charges, that were subject to discovery under the ADR Rules and these Regulations to the extent admissible under the South Carolina Rules of Civil Procedure or South Carolina Rules of Evidence.
11. Communications to the Board, Commission or their staffs relating to misconduct or incapacity in testimony given in the proceedings shall be absolutely privileged, and no civil lawsuit predicated thereon may be initiated against any Complainant or witness. Members of the Board, Commission and staff shall be absolutely immune from civil suit for all conduct in the course of their