DISPUTE RESOLUTION FOR THE GENERAL PRACTITIONER
Alternative Dispute Resolution (ADR) is here to stay in Michigan. A portion of every filing fee goes to support Community Dispute Resolution Programs. An ever increasing number of circuit, district, and probate courts are adopting alternative dispute resolution plans which are a prerequisite for ordering cases into ADR. The likelihood of a civil matter being litigated is steadily decreasing as the caseloads of the trial courts increases.
There are broadly speaking, four forms of dispute resolution recognized under MCR 2.410 (A)(2). The first two, case evaluation and settlement conferences are traditional forms of dispute resolution with which practitioners in Michigan are familiar. The third, mediation, whether for general civil or for domestic relations purposes is a more recent development. The fourth type of dispute resolution is “other procedures provided by local court rule or ordered on stipulation of the parties” (MCR 2.410(A)(2), which may include arbitration, minitrials, and any other form of dispute resolution which parties may agree to attempt.
General Civil Mediation
General Civil Mediation applies to mediation for all civil cases, except for domestic relations cases, at the District, Probate, and Circuit Court level. The preferred method of Mediation in Michigan is facilitative mediation. The process involves a neutral facilitator or facilitators who help the parties identify issues and needs and possible solutions. The neutral facilitator has no decisionmaking power (MCR 2.411(A)(2)). The process is intended to be nonadversarial. Mediation is also a confidential process (MCR 2.411(C)(5).
In practice, in court systems with an ADR plan utilizing mediation, all, or nearly all, civil cases are ordered into mediation. Cases may be ordered into mediation very early along in discovery. If a party does not wish to avail themselves of mediation, they may file an objection within 14 days of the entry of the order referring a case to mediation (MCR 2.410(E). Once a case has been ordered into mediation, the parties will have a period of time to select a mutually agreed upon mediator (MCR 2.411(B)(2)). If a mediator is mutually agreeable to the parties, that person need not meet the qualifications set forth in MCR 2.411(F). (MCR 2.411(B)(1) If the parties do not mutually agree on a mediator, the court will select one off of the list maintained by the court; these mediators must meet the qualifications in MCR 2.411(F). (MCR 2.411(B)(2) and (B)(3)) The court will specify when mediation will be completed (MCR 2.411(C)(1).
As a practical matter, it is a good idea for counsel to keep track of the list of persons serving as mediators in a given court. The list of mediators is available to the public from the court clerk’s office or the probate register’s office. Mediators need not be attorneys; in many district court and small claims cases the local community dispute resolution program (CDRP) will be providing the mediation services. However, all court approved mediators must meet the training qualifications in MCR 2.411(F). The practitioner is advised to consider the settlement record of the mediator as part of the selection process: is this a case that the attorney wants to settle or would it benefit the client to have the case go to a jury? Would a mediator who is an attorney be better than a non-attorney mediator?
The art of advocacy for an attorney in mediation is quite different from the art of advocacy in litigation. Mediation seeks to address the issues and needs of the client, thus mediation sessions are aimed at empowering clients to play a major role. The views of the plaintiff and the defendant, rather than the views of the plaintiff and defendant voiced through their counsel become key. This can be very uncomfortable for counsel. Efforts should be taken before the mediation session to learn what issues and needs the client has (what the client wants may not be a remedy available at law; monetary compensation might be less important than an apology or the chance to clear the air with a customer may be more important than contractual remedies). Counsel should be prepared to discuss the strengths and weaknesses of the case. Counsel should be prepared to offer potential solutions to the matter and to assist their client in evaluating them. Premediation preparation by both counsel and client is key to having a productive outcome of the mediation process. It is never a good idea to show up for mediation and have to ask around for your client, as I have witnessed on numerous occasions while serving as a mediator.
“Other procedures provided by local court rule or ordered on stipulation of the parties”
This provision allows for creative dispute resolution. The possibilities here are limited only by the imagination of the court and counsel.
Arbitration is one of many possibilities. It is a familiar process for redressing contractual disputes. Terminology may be less important here as well, so I will use “Arbitration” to mean any adversarial method outside of actual court proceedings agreed to by parties under MCR 2.410(A)(2); “arbitrator(s)” will be used as the individuals hearing the controversy in the arbitration. Michigan’s arbitration act, MCL 600.5001 et seq. provides that “[A]ll persons, except infants and persons of unsound mind, may, by an instrument in writing, submit to the decision of 1 or more arbitrators, any controversy existing between them, which might be the subject of a civil action,....and may...agree that a judgment of any circuit court shall be rendered upon the award made pursuant to such submission” (MCL 600.5001(1)) A written stipulation between the parties to submit a matter to arbitration satisfies the requirements of MCL 600.5001. As the matter has been filed with the court, there will not be the uncertainty associated with Michigan’s quirky common law arbitration, but to avoid any possibility of common law arbitration the magic words “the parties agree to submit the arbitration award for entry of judgment by the ____ Circuit Court” should be included in the stipulation.
The stipulation of the parties should include provision for how the arbitrator(s) are to be selected. If the stipulation is silent, the arbitration act provides for the court, upon application of the parties, to appoint 1 or more arbitrators. (MCL 600.5015) The stipulation should address what rules of procedure and of evidence will be followed, the location of the arbitration, which party has the burden of proof (if there is a question of this), and the extent to which the arbitrator(s) may interpret ambiguities. The parties may want to have a jury to determine factual issues; the stipulation should agree on how the jury is to be chosen. There are available rules of arbitration from the American Arbitration Association, the National Arbitration Forum, Peacemaker Ministries and others which can be useful resources. Confidentiality issues should also be covered in the stipulation.
Courts are generally quite agreeable to having parties work out solutions to their problems on their own, so counsel should discuss with their clients options other than court adjudication. The remedies that are available in an arbitration award are not limited to those available at law or equity and such an award will be afforded judgment in the circuit court (MCL 600.5025). Enforcement of an arbitration award is covered under MCR 3.602 (I – L).
Domestic Relations Mediation and Arbitration
These issues will be discussed together given the fact that they overlap. MCR 3.216 covers domestic relations mediation; MCL 600.5070 et seq. covers domestic relations arbitration. All domestic relations issues are subject to mediation unless provided for by statute or court rule (MCR 3.216(A)(1)) Parties to a domestic relations action may stipulate to domestic relations arbitration by a signed agreement (MCL 600.5071) Domestic relations mediation is defined at MCR 3.216(A)(2) as “a nonbinding process in which a neutral third party facilitates communication between parties to promote settlement.” The domestic relations mediator may provide a written recommendation for settlement of any issues that remain unresolved at the conclusion of a mediation proceeding (Id). In domestic relations arbitration, the arbitrator has the power to decide each issue assigned to arbitration under the arbitration agreement with enforcement by the court (MCL 600.5072(1)(f). The major difference between the two is whether or not the decision of the 3rd party is binding.
Domestic relations arbitration is a very formal process. The arbitrator has the power to administer oaths, issue subpoenas, issue discovery orders, issue document production orders, and issue arbitration expense allocation orders (MCL 600.5074). There is a requirement that a record be made of issues concerning child support, custody, and parenting time; the statute provides that a record shall not be kept of other issues (MCL 600.5077). There are provisions for entry of the award; enforcement of the award; vacation of the award involving child support, custody, or parenting time (the court is to weigh the best interest of the child); appeal from the award; and sanctions.
There are very limited grounds to vacate an arbitration award. Unless there is a showing that the award was procured by corruption, that the arbitrator was corrupt or partial, that the arbitrator exceeded their powers or that the arbitrator conducted the arbitration in a manner designed to prejudice the rights of a party, courts will not vacate domestic relations arbitration awards.
Because the domestic relations arbitration process is binding, there are strategic determinations that should be made in consultation with one’s client. Have other methods been tried, such as domestic relations mediation, to narrow or eliminate issues? What is the track record of the trial judge as compared to the track records of the arbitrators that the judge uses? Is there a history of domestic violence? (if there is a history of domestic violence, domestic relations mediation and arbitration will be affected significantly, possibly to the point where it is inadvisable to select either)
Domestic relations mediation is not binding. Parties will be encouraged to discuss facts and issues. There may be multiple mediation sessions as needed. Parties may wish to allow the mediator to propose recommendations to issues; these recommendations may, by the consent of each party become the basis of a judgment (MCR 3.216(I)(3). The process is confidential (MCR 3.216(G)(8).
Counsel is advised to be aware of the selection process for domestic relations mediators. If parties stipulate to a mediator, that person need not comply with the training qualifications set out in MCR 3.216(F) and (G). If the parties do not stipulate to a mediator, they must indicate to the court if they want a mediator that performs evaluative mediation. Failure to so request is treated as not requesting evaluative mediation (MCR 3.216(E)(3)). If the parties have not stipulated to a mediator, the judge may recommend a mediator; in the event that the judge does not recommend a mediator or if the parties do not agree on the judge’s choice, the ADR clerk will assign a mediator from the court’s list (MCR 3.216(E)(4)). Mediators on this list must meet the educational requirements of MCR 3.216(F) and (G), and may or may not be attorneys. The list of qualified mediators is available to the public, so it is advisable to have a copy in advance and to know the track record of the mediators so that if the parties are unable to stipulate to a mediator, counsel may advise the client as to what the likelihood of settlement will be.
In all forms of alternative dispute resolution, it is wise to keep in mind that there are consequences for not participating. MCR 2.410(D)(3) lists the possible sanctions that a party exposes itself to if it does not attend ordered ADR sessions. Once ADR has been ordered, the parties must attend even if they do not wish to fully avail themselves of the process.
Lawyers are problem solvers. With the expansion of the realm of alternative dispute resolution and with the increasing reliance upon ADR by the courts to manage caseloads, attorneys must include in their problem solving tool-box ADR awareness and skills along with litigation skills. Flexibility, speed, confidentiality, and cost are attractive features of ADR and part of client education will be the need to compare and contrast the attributes of ADR with litigation.
____________________
Michael Boersma, Esq.
The Law Office of Michael E. Boersma, PC
Mr. Boersma is an arbitrator and mediator with several trial courts in Southwestern Michigan and in Illinois.
Mr. Boersma’s email address is m_e_boersma@voyager.net, and he welcomes questions or comments.
Alternative Dispute Resolution (ADR) is here to stay in Michigan. A portion of every filing fee goes to support Community Dispute Resolution Programs. An ever increasing number of circuit, district, and probate courts are adopting alternative dispute resolution plans which are a prerequisite for ordering cases into ADR. The likelihood of a civil matter being litigated is steadily decreasing as the caseloads of the trial courts increases.
There are broadly speaking, four forms of dispute resolution recognized under MCR 2.410 (A)(2). The first two, case evaluation and settlement conferences are traditional forms of dispute resolution with which practitioners in Michigan are familiar. The third, mediation, whether for general civil or for domestic relations purposes is a more recent development. The fourth type of dispute resolution is “other procedures provided by local court rule or ordered on stipulation of the parties” (MCR 2.410(A)(2), which may include arbitration, minitrials, and any other form of dispute resolution which parties may agree to attempt.
General Civil Mediation
General Civil Mediation applies to mediation for all civil cases, except for domestic relations cases, at the District, Probate, and Circuit Court level. The preferred method of Mediation in Michigan is facilitative mediation. The process involves a neutral facilitator or facilitators who help the parties identify issues and needs and possible solutions. The neutral facilitator has no decisionmaking power (MCR 2.411(A)(2)). The process is intended to be nonadversarial. Mediation is also a confidential process (MCR 2.411(C)(5).
In practice, in court systems with an ADR plan utilizing mediation, all, or nearly all, civil cases are ordered into mediation. Cases may be ordered into mediation very early along in discovery. If a party does not wish to avail themselves of mediation, they may file an objection within 14 days of the entry of the order referring a case to mediation (MCR 2.410(E). Once a case has been ordered into mediation, the parties will have a period of time to select a mutually agreed upon mediator (MCR 2.411(B)(2)). If a mediator is mutually agreeable to the parties, that person need not meet the qualifications set forth in MCR 2.411(F). (MCR 2.411(B)(1) If the parties do not mutually agree on a mediator, the court will select one off of the list maintained by the court; these mediators must meet the qualifications in MCR 2.411(F). (MCR 2.411(B)(2) and (B)(3)) The court will specify when mediation will be completed (MCR 2.411(C)(1).
As a practical matter, it is a good idea for counsel to keep track of the list of persons serving as mediators in a given court. The list of mediators is available to the public from the court clerk’s office or the probate register’s office. Mediators need not be attorneys; in many district court and small claims cases the local community dispute resolution program (CDRP) will be providing the mediation services. However, all court approved mediators must meet the training qualifications in MCR 2.411(F). The practitioner is advised to consider the settlement record of the mediator as part of the selection process: is this a case that the attorney wants to settle or would it benefit the client to have the case go to a jury? Would a mediator who is an attorney be better than a non-attorney mediator?
The art of advocacy for an attorney in mediation is quite different from the art of advocacy in litigation. Mediation seeks to address the issues and needs of the client, thus mediation sessions are aimed at empowering clients to play a major role. The views of the plaintiff and the defendant, rather than the views of the plaintiff and defendant voiced through their counsel become key. This can be very uncomfortable for counsel. Efforts should be taken before the mediation session to learn what issues and needs the client has (what the client wants may not be a remedy available at law; monetary compensation might be less important than an apology or the chance to clear the air with a customer may be more important than contractual remedies). Counsel should be prepared to discuss the strengths and weaknesses of the case. Counsel should be prepared to offer potential solutions to the matter and to assist their client in evaluating them. Premediation preparation by both counsel and client is key to having a productive outcome of the mediation process. It is never a good idea to show up for mediation and have to ask around for your client, as I have witnessed on numerous occasions while serving as a mediator.
“Other procedures provided by local court rule or ordered on stipulation of the parties”
This provision allows for creative dispute resolution. The possibilities here are limited only by the imagination of the court and counsel.
Arbitration is one of many possibilities. It is a familiar process for redressing contractual disputes. Terminology may be less important here as well, so I will use “Arbitration” to mean any adversarial method outside of actual court proceedings agreed to by parties under MCR 2.410(A)(2); “arbitrator(s)” will be used as the individuals hearing the controversy in the arbitration. Michigan’s arbitration act, MCL 600.5001 et seq. provides that “[A]ll persons, except infants and persons of unsound mind, may, by an instrument in writing, submit to the decision of 1 or more arbitrators, any controversy existing between them, which might be the subject of a civil action,....and may...agree that a judgment of any circuit court shall be rendered upon the award made pursuant to such submission” (MCL 600.5001(1)) A written stipulation between the parties to submit a matter to arbitration satisfies the requirements of MCL 600.5001. As the matter has been filed with the court, there will not be the uncertainty associated with Michigan’s quirky common law arbitration, but to avoid any possibility of common law arbitration the magic words “the parties agree to submit the arbitration award for entry of judgment by the ____ Circuit Court” should be included in the stipulation.
The stipulation of the parties should include provision for how the arbitrator(s) are to be selected. If the stipulation is silent, the arbitration act provides for the court, upon application of the parties, to appoint 1 or more arbitrators. (MCL 600.5015) The stipulation should address what rules of procedure and of evidence will be followed, the location of the arbitration, which party has the burden of proof (if there is a question of this), and the extent to which the arbitrator(s) may interpret ambiguities. The parties may want to have a jury to determine factual issues; the stipulation should agree on how the jury is to be chosen. There are available rules of arbitration from the American Arbitration Association, the National Arbitration Forum, Peacemaker Ministries and others which can be useful resources. Confidentiality issues should also be covered in the stipulation.
Courts are generally quite agreeable to having parties work out solutions to their problems on their own, so counsel should discuss with their clients options other than court adjudication. The remedies that are available in an arbitration award are not limited to those available at law or equity and such an award will be afforded judgment in the circuit court (MCL 600.5025). Enforcement of an arbitration award is covered under MCR 3.602 (I – L).
Domestic Relations Mediation and Arbitration
These issues will be discussed together given the fact that they overlap. MCR 3.216 covers domestic relations mediation; MCL 600.5070 et seq. covers domestic relations arbitration. All domestic relations issues are subject to mediation unless provided for by statute or court rule (MCR 3.216(A)(1)) Parties to a domestic relations action may stipulate to domestic relations arbitration by a signed agreement (MCL 600.5071) Domestic relations mediation is defined at MCR 3.216(A)(2) as “a nonbinding process in which a neutral third party facilitates communication between parties to promote settlement.” The domestic relations mediator may provide a written recommendation for settlement of any issues that remain unresolved at the conclusion of a mediation proceeding (Id). In domestic relations arbitration, the arbitrator has the power to decide each issue assigned to arbitration under the arbitration agreement with enforcement by the court (MCL 600.5072(1)(f). The major difference between the two is whether or not the decision of the 3rd party is binding.
Domestic relations arbitration is a very formal process. The arbitrator has the power to administer oaths, issue subpoenas, issue discovery orders, issue document production orders, and issue arbitration expense allocation orders (MCL 600.5074). There is a requirement that a record be made of issues concerning child support, custody, and parenting time; the statute provides that a record shall not be kept of other issues (MCL 600.5077). There are provisions for entry of the award; enforcement of the award; vacation of the award involving child support, custody, or parenting time (the court is to weigh the best interest of the child); appeal from the award; and sanctions.
There are very limited grounds to vacate an arbitration award. Unless there is a showing that the award was procured by corruption, that the arbitrator was corrupt or partial, that the arbitrator exceeded their powers or that the arbitrator conducted the arbitration in a manner designed to prejudice the rights of a party, courts will not vacate domestic relations arbitration awards.
Because the domestic relations arbitration process is binding, there are strategic determinations that should be made in consultation with one’s client. Have other methods been tried, such as domestic relations mediation, to narrow or eliminate issues? What is the track record of the trial judge as compared to the track records of the arbitrators that the judge uses? Is there a history of domestic violence? (if there is a history of domestic violence, domestic relations mediation and arbitration will be affected significantly, possibly to the point where it is inadvisable to select either)
Domestic relations mediation is not binding. Parties will be encouraged to discuss facts and issues. There may be multiple mediation sessions as needed. Parties may wish to allow the mediator to propose recommendations to issues; these recommendations may, by the consent of each party become the basis of a judgment (MCR 3.216(I)(3). The process is confidential (MCR 3.216(G)(8).
Counsel is advised to be aware of the selection process for domestic relations mediators. If parties stipulate to a mediator, that person need not comply with the training qualifications set out in MCR 3.216(F) and (G). If the parties do not stipulate to a mediator, they must indicate to the court if they want a mediator that performs evaluative mediation. Failure to so request is treated as not requesting evaluative mediation (MCR 3.216(E)(3)). If the parties have not stipulated to a mediator, the judge may recommend a mediator; in the event that the judge does not recommend a mediator or if the parties do not agree on the judge’s choice, the ADR clerk will assign a mediator from the court’s list (MCR 3.216(E)(4)). Mediators on this list must meet the educational requirements of MCR 3.216(F) and (G), and may or may not be attorneys. The list of qualified mediators is available to the public, so it is advisable to have a copy in advance and to know the track record of the mediators so that if the parties are unable to stipulate to a mediator, counsel may advise the client as to what the likelihood of settlement will be.
In all forms of alternative dispute resolution, it is wise to keep in mind that there are consequences for not participating. MCR 2.410(D)(3) lists the possible sanctions that a party exposes itself to if it does not attend ordered ADR sessions. Once ADR has been ordered, the parties must attend even if they do not wish to fully avail themselves of the process.
Lawyers are problem solvers. With the expansion of the realm of alternative dispute resolution and with the increasing reliance upon ADR by the courts to manage caseloads, attorneys must include in their problem solving tool-box ADR awareness and skills along with litigation skills. Flexibility, speed, confidentiality, and cost are attractive features of ADR and part of client education will be the need to compare and contrast the attributes of ADR with litigation.
____________________
Michael Boersma, Esq.
The Law Office of Michael E. Boersma, PC
Mr. Boersma is an arbitrator and mediator with several trial courts in Southwestern Michigan and in Illinois.
Mr. Boersma’s email address is m_e_boersma@voyager.net, and he welcomes questions or comments.
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