ICLE Homepage | Other New and Amended MCRs
May 9, 2000
99-02
Amendment of Rules 2.401,
2.403, 2.404, 2.405, 2.501,
2.502, 2.503, 3.216 and 5.143
of the Michigan Court Rules,
and adoption of new Rules
2.410 and 2.411
_____________________________
On order of the Court, notice of the proposed changes and an
opportunity for comment in writing and at public hearings having
been provided, and consideration having been given to the
comments received, the following amendments of Rules 2.401,
2.403, 2.404, 2.405, 2.501, 2.502, 2.503, 3.216 and 5.143 of the
Michigan Court Rules, and new Rules 2.410 and 2.411, are adopted,
to be effective August 1, 2000.
[The rules are amended as set forth below. Changes
from current language are shown in Rules 2.401, 2.403,
2.404, 2.405, 2.501, 2.502, 2.503, and 5.143. In Rule
3.216, only the revised text is shown. Rules 2.410 and
2.411 are new.]
ICLE Editor's Note:
[Italicized, bracketed text] indicates text that has been
deleted.
Bold text indicates new text.
Subchapter 2.400 Pretrial Procedure; [Mediation]
Alternative Dispute Resolution; Offers of Judgment;
Settlements
Rule 2.401 Pretrial Procedures; Conferences; Scheduling
Orders
(A) Time; Discretion of Court. At any time after the
commencement of the action, on its own initiative or the
request of a party, the court may direct that the attorneys
for the parties, alone or with the parties, appear
for a conference. The court shall give reasonable notice of
the scheduling of a conference. More than one conference
may be held in an action.
(B) Early Scheduling Conference and Order.
(1) Early Scheduling Conference. The court may direct that
an early scheduling conference be held. In addition to
those considerations enumerated in subrule (C)(1),
during this conference the court should
consider:
(a)[ consider] whether jurisdiction and venue
are proper or whether the case is frivolous,
(b) whether to refer the case to an alternative
dispute resolution procedure under MCR 2.410,
and
[(b)](c)[ determine] the complexity
of a particular case and enter a scheduling order
setting time limitations for the processing of the case
and establishing dates when future actions should begin
or be completed in the case.
(2) Scheduling Order.
(a) At an early scheduling conference under subrule
(B)(1), a pretrial conference under subrule (C),
or at such other time as the court concludes that
such an order would facilitate the progress of the
case, the court shall establish times for
events the court deems appropriate, including
(i) the initiation or completion of an ADR
process,
(ii) the amendment of pleadings, adding of
parties, or filing of motions,
[(i)] (iii) the completion of discovery,
[(ii)](iv) the exchange of witness lists
under subrule (I), and
[(iii)](v)[ any other matters that
the court may deem appropriate, including the
amendment of pleadings, the adding of parties, the
filing of motions, or] the scheduling of
[mediation,] a pretrial conference, a
settlement conference, or trial.
More than one such order may be entered in a case.
(b) - (c) [Unchanged.]
(C) Pretrial Conference; Scope.
(1) At a conference under this subrule, in addition to the
matters listed in subrule (B)(1), the court and the
attorneys for the parties may consider any matters that
will facilitate the fair and expeditious disposition of
the action, including:
(a) – (g) [Unchanged.]
(h) whether mediation, case evaluation, or some
other form of alternative dispute resolution would
be appropriate for the case, and what
mechanisms are available to provide such
services;
(i) – (l) [Unchanged.]
(2) [Unchanged.]
(D) - (I) [Unchanged.]
Rule 2.403[ Mediation] Case Evaluation
(A) Scope and Applicability of Rule.
(1) A court may submit to [mediation] case
evaluation any civil action in which the relief
sought is primarily money damages or division of
property. [However, MCR 3.216 governs mediation of
domestic relations actions.]
(2)[ Mediation] Case evaluation of tort
cases filed in circuit court is mandatory beginning
with actions filed after the effective dates of
Chapters 49 and 49A of the Revised Judicature Act, as
added by 1986 PA 178; however, the court may except an
action from [mediation] case evaluation
on motion for good cause shown if it finds that
[mediation] case evaluation of that
action would be inappropriate.
(3) Cases filed in district court may be submitted to
[mediation] case evaluation under this
rule. The time periods set forth in subrules (B)(1),
(G)(1), (L)(1) and (L)(2) may be shortened at the
discretion of the district judge to whom the case is
assigned.
(B) Selection of Cases.
(1) The judge to whom an action is assigned or the chief
judge may select it for [mediation] case
evaluation by written order no earlier than 91 days
after the filing of the answer
(a) on written stipulation by the parties,
(b) on written motion by a party, or
(c) on the judge's own initiative.
(2) Selection of an action for [mediation] case
evaluation has no effect on the normal progress of
the action toward trial.
(C) Objections to [Mediation] Case
Evaluation.
(1) To object to [mediation] case evaluation,
a party must file a written motion to remove from
[mediation] case evaluation and a notice
of hearing of the motion and serve a copy on the
attorneys of record and the [mediation]
ADR clerk within 14 days after notice of the
order assigning the action to [mediation]
case evaluation. The motion must be set for
hearing within 14 days after it is filed, unless the
court orders otherwise.
(2) A timely motion must be heard before the case is
submitted to [mediation] case evaluation.
(D)[ Mediation] Case Evaluation Panel.
(1)[ Mediation] Case evaluation panels shall
be composed of 3 persons.
(2) The procedure for selecting [mediation] case
evaluation panels is as provided in MCR 2.404.
(3) A judge may be selected as a member of a
[mediation] case evaluation panel, but
may not preside at the trial of any action in which he
or she served as a [mediator] case
evaluator.
(4) A [mediator] case evaluator may not be
called as a witness at trial.
[
](E) Disqualification of [Mediators]
Case Evaluators. The rule for disqualification of a
[mediator] case evaluator is the same as that
provided in MCR 2.003 for the disqualification of a judge.
(F)[ Mediation] ADR Clerk. The court
shall designate the ADR clerk [of the court, the
court administrator, the assignment clerk] specified
under MCR 2.410, or some other person, to
[serve as] administer the [mediation
clerk.] case evaluation program. In this rule and
MCR 2.404, "ADR clerk" refers to the person so
designated.
(G) Scheduling [Mediation] Case
Evaluation Hearing.
(1) The [mediation] ADR clerk shall set a
time and place for the hearing and send notice to the
[mediators] case evaluators and the
attorneys at least 42 days before the date set.
(2) [Unchanged.]
(H) Fees.
(1) Within 14 days after the mailing of the notice of the
[mediation] case evaluation hearing,
unless otherwise ordered by the court, each party must
send to the [mediation] ADR clerk a check
for $75 made payable in the manner specified in the
notice of the [mediation] case evaluation
hearing. However, if a judge is a member of the panel,
the fee is $50. The [mediation] ADR
clerk shall arrange payment to the [mediators]
case evaluators. Except by stipulation and
court order, the parties may not make any other payment
of fees or expenses to the [mediators] case
evaluators than that provided in this subrule.
(2) [Unchanged.]
(3) If one claim is derivative of another (e.g.,
husband-wife, parent-child) they must be treated as a
single claim, with one fee to be paid and a single
award made by the [mediators] case
evaluators.
(4) In the case of multiple injuries to members of a single
family, the plaintiffs may elect to treat the action as
involving one claim, with the payment of one fee and
the rendering of one lump sum award to be accepted or
rejected. If no such election is made, a separate fee
must be paid for each plaintiff, and the
[mediation] case evaluation panel will
then make separate awards for each claim, which may be
individually accepted or rejected.
(5) Fees paid pursuant to subrule (H) shall be refunded to
the parties if
(a)[ if] the court sets aside the order
submitting the case to [mediation] case
evaluation or on its own initiative adjourns
the [mediation] case evaluation
hearing, or
(b) the parties notify the [mediation]
ADR clerk in writing at least 14 days
before the [mediation] case
evaluation hearing of the settlement,
dismissal, or entry of judgment disposing of the
action, or of an order of adjournment on
stipulation or the motion of a party.
In the case of an adjournment, the fees shall not be
refunded if the adjournment order sets a new date for
[mediation] case evaluation. If
[mediation] case evaluation is
rescheduled at a later time, the fee provisions of
subrule (H) apply regardless of whether previously paid
fees have been refunded. Penalties for late filing of
papers under subrule (I)(2) are not to be refunded.
(I) Submission of Documents.
(1) At least 14 days before the hearing, each party shall
file with the [mediation] ADR clerk 3
copies of documents pertaining to the issues to be
mediated and 3 copies of a concise summary setting
forth that party's factual and legal position on issues
presented by the action, and shall serve one copy of
the documents and summary on each attorney of record.
A copy of a proof of service must be attached to the
copies filed with the [mediation] ADR
clerk.
(2) Failure to file the required materials with the
[mediation] ADR clerk or to serve copies
on each attorney of record by the required date
subjects the offending attorney or party to a $150
penalty to be paid in the manner specified in the
notice of the [mediation] case evaluation
hearing. An offending attorney shall not charge the
penalty to the client, unless the client agreed in
writing to be responsible for the penalty.
(J) Conduct of Hearing.
(1) A party has the right, but is not required, to attend a
[mediation] case evaluation hearing. If
scars, disfigurement, or other unusual conditions
exist, they may be demonstrated to the panel by a
personal appearance; however, no testimony will be
taken or permitted of any party.
(2) The rules of evidence do not apply before the
[mediation] case evaluation panel.
Factual information having a bearing on damages or
liability must be supported by documentary evidence, if
possible.
(3) Oral presentation shall be limited to 15 minutes per
side unless multiple parties or unusual circumstances
warrant additional time. Information on applicable
insurance policy limits and settlement negotiations
shall be disclosed at the request of the
[mediation] case evaluation panel.
(4) [Unchanged.]
(5) Counsel or the parties may not engage in ex parte
communications with the [mediators] case
evaluators concerning the action prior to the
hearing. After the evaluation, the [mediators]
case evaluators need not respond to inquiries by
the parties or counsel regarding the proceeding or the
evaluation.
(K) [Unchanged.]
(L) Acceptance or Rejection of Evaluation.
(1) Each party shall file a written acceptance or rejection
of the panel's evaluation with the [mediation]
ADR clerk within 28 days after service of the
panel's evaluation. Even if there are separate awards
on multiple claims, the party must either accept or
reject the evaluation in its entirety as to a
particular opposing party. The failure to file a
written acceptance or rejection within 28 days
constitutes rejection.
(2) There may be no disclosure of a party's acceptance or
rejection of the panel's evaluation until the
expiration of the 28-day period, at which time the
[mediation] ADR clerk shall send a notice
indicating each party's acceptance or rejection of the
panel's evaluation.
(3) In [mediations] case evaluations
involving multiple parties the following rules apply:
(a) – (c) [Unchanged.]
(M) [Unchanged.]
(N) Proceedings After Rejection.
(1) If all or part of the evaluation of the
[mediation] case evaluation panel is
rejected, the action proceeds to trial in the normal
fashion.
(2) If a party's claim or defense was found to be frivolous
under subrule (K)(4), that party may request that the
court review the panel's finding by filing a motion
within 14 days after the [mediation] ADR
clerk sends notice of the rejection of the
[mediation] case evaluation award.
(a) The motion shall be submitted to the court on the
[mediation] case evaluation
summaries and documents that were considered by
the [mediation] case evaluation
panel. No other exhibits or testimony may be
submitted. However, oral argument on the motion
shall be permitted.
(b) – (d) [Unchanged.]
(3) Except as provided in subrule (2), if a party's claim
or defense was found to be frivolous under subrule
(K)(4), that party shall post a cash or surety bond,
pursuant to MCR 3.604, in the amount of $5,000 for each
party against whom the action or defense was determined
to be frivolous.
(a) The bond must be posted within 56 days after the
[mediation] case evaluation hearing
or at least 14 days before trial, whichever is
earlier.
(b) – (d) [Unchanged.]
(4) The [mediation] ADR clerk shall place a
copy of the [mediation] case evaluation
and the parties' acceptances and rejections in a sealed
envelope for filing with the clerk of the court. In a
nonjury action, the envelope may not be opened and the
parties may not reveal the amount of the evaluation
until the judge has rendered judgment.
(O) Rejecting Party's Liability for Costs.
(1) If a party has rejected an evaluation and the action
proceeds to verdict, that party must pay the opposing
party's actual costs unless the verdict is more
favorable to the rejecting party than the
[mediation] case evaluation. However, if
the opposing party has also rejected the evaluation, a
party is entitled to costs only if the verdict is more
favorable to that party than the [mediation]
case evaluation.
(2) For the purpose of this rule "verdict" includes,
(a) a jury verdict,
(b) a judgment by the court after a nonjury trial,
(c) a judgment entered as a result of a ruling on a
motion after rejection of the [mediation]
case evaluation.
(3) For the purpose of subrule (O)(1), a verdict must be
adjusted by adding to it assessable costs and interest
on the amount of the verdict from the filing of the
complaint to the date of the [mediation]
case evaluation, and, if applicable, by making
the adjustment of future damages as provided by MCL
600.6306; MSA 27A.6306. After this adjustment, the
verdict is considered more favorable to a defendant if
it is more than 10 percent below the evaluation, and is
considered more favorable to the plaintiff if it is
more than 10 percent above the evaluation. If the
evaluation was zero, a verdict finding that a defendant
is not liable to the plaintiff shall be deemed more
favorable to the defendant.
(4) In cases involving multiple parties, the following
rules apply:
(a) Except as provided in subrule (O)(4)(b), in
determining whether the verdict is more favorable
to a party than the [mediation] case
evaluation, the court shall consider only the
amount of the evaluation and verdict as to the
particular pair of parties, rather than the
aggregate evaluation or verdict as to all parties.
However, costs may not be imposed on a plaintiff
who obtains an aggregate verdict more favorable to
the plaintiff than the aggregate evaluation.
(b) If the verdict against more than one defendant is
based on their joint and several liability, the
plaintiff may not recover costs unless the verdict
is more favorable to the plaintiff than the total
[mediation] case evaluation as to
those defendants, and a defendant may not recover
costs unless the verdict is more favorable to that
defendant than the [mediation] case
evaluation as to that defendant.
(c) [Unchanged.]
(5) [Unchanged.]
(6) For the purpose of this rule, actual costs are
(a) those costs taxable in any civil action, and
(b) a reasonable attorney fee based on a reasonable
hourly or daily rate as determined by the trial
judge for services necessitated by the rejection
of the [mediation] case evaluation.
For the purpose of determining taxable costs under this
subrule and under MCR 2.625, the party entitled to
recover actual costs under this rule shall be
considered the prevailing party.
(7) Costs shall not be awarded if the [mediation]
case evaluation award was not unanimous.
(8) – (11) [Unchanged.]
Rule 2.404 Selection of [Mediation] Case
Evaluation Panels
(A)[ Mediator] Case Evaluator Selection
Plans.
(1) Requirement. Each trial court that submits cases to
[mediation] case evaluation under MCR
2.403 shall adopt by local administrative order a plan
to maintain a list of persons available to serve as
[mediators] case evaluators and to assign
[mediators] case evaluators from the list
to panels. The plan must be in writing and available
to the public in the [mediation] ADR
clerk's office.
(2) Alternative Plans.
(a) A plan adopted by a district or probate court may
use the list of [mediators] case
evaluators and appointment procedure of the
circuit court for the circuit in which the court
is located.
(b) Courts in adjoining circuits or districts may
jointly adopt and administer a [mediation]
case evaluation plan.
(c) If it is not feasible for a court to adopt its own
plan because of the low volume of cases to be
submitted or because of inadequate numbers of
available [mediators] case
evaluators, the court may enter into an
agreement with a neighboring court to refer cases
for [mediation] case evaluation
under the other court's system. The agreement may
provide for payment by the referring court to
cover the cost of administering [mediation]
case evaluation. However, fees and costs
may not be assessed against the parties to actions
[mediated] evaluated except as
provided by MCR 2.403.
(d) Other alternative plans must be submitted as
local court rules under MCR 8.112(A).
(B) Lists of [Mediators] Case
Evaluators.
(1) Application. An eligible person desiring to serve as a
[mediator] case evaluator may apply to
the [mediation] ADR clerk to be placed on
the list of [mediators] case evaluators.
Application forms shall be available in the office of
the [mediation] ADR clerk. The form
shall include an optional section identifying the
applicant's gender and racial/ethnic background. The
form shall include a certification that
(a) the [mediator] case evaluator meets
the requirements for service under the court's
selection plan, and
(b) the [mediator] case evaluator will
not discriminate against parties, attorneys, or
other [mediators] case evaluators on
the basis of race, ethnic origin, gender, or other
protected personal characteristic.
(2) Eligibility. To be eligible to serve as a
[mediator] case evaluator, a person must
meet the qualifications provided by this subrule.
(a) The applicant must have been a practicing lawyer
for at least 5 years and be a member in good
standing of the State Bar of Michigan. The plan
may not require membership in any other
organization as a qualification for service as a
[mediator] case evaluator.
(b) An applicant must reside, maintain an office, or
have an active practice in the jurisdiction for
which the list of [mediators] case
evaluators is compiled.
(c) An applicant must demonstrate that a substantial
portion of the applicant's practice for the last 5
years has been devoted to civil litigation
matters, including investigation, discovery,
motion practice, [mediation] case
evaluation, settlement, trial preparation,
and/or trial.
(d) If separate sublists are maintained for specific
types of cases, the applicant must have had an
active practice in the practice area for which the
[mediator] case evaluator is listed
for at least the last 3 years.
If there are insufficient numbers of potential
[mediators] case evaluators meeting the
qualifications stated in this rule, the plan may
provide for consideration of alternative
qualifications.
(3) Review of Applications. The plan shall provide for a
person or committee to review applications annually, or
more frequently if appropriate, and compile one or more
lists of qualified [mediators] case
evaluators. Persons meeting the qualifications
specified in this rule shall be placed on the list of
approved [mediators] case evaluators.
Selections shall be made without regard to race, ethnic
origin, or gender.
(a) – (b) [Unchanged.]
(c) Applicants who are not placed on the
[mediator] case evaluator list or
lists shall be notified of that decision. The
plan shall provide a procedure by which such an
applicant may seek reconsideration of the decision
by some other person or committee. The plan need
not provide for a hearing of any kind as part of
the reconsideration process. Documents considered
in the initial review process shall be retained
for at least the period of time during which the
applicant can seek reconsideration of the original
decision.
(4) Specialized Lists. If the number and qualifications of
available [mediators] case evaluators
makes it practicable to do so, the [mediation]
ADR clerk shall maintain
(a) separate lists for various types of cases, and,
(b) where appropriate for the type of cases, separate
sublists of [mediators] case
evaluators who primarily represent plaintiffs,
primarily represent defendants, and neutral
[mediators] cases evaluators whose
practices are not identifiable as representing
primarily plaintiffs or defendants.
(5) Reapplication. Persons shall be placed on the list of
[mediators] case evaluators for a fixed
period of time, not to exceed 5 years, and must reapply
at the end of that time in the same manner as persons
seeking to be added to the list.
(6) Availability of Lists. The list of [mediators]
case evaluators must be available to the public
in the [mediation] ADR clerk's office.
(7) Removal from List. The plan must include a procedure
for removal from the list of [mediators] case
evaluators who have demonstrated incompetency,
bias, made themselves consistently unavailable to serve
as a [mediator] case evaluator, or for
other just cause.
(8) The court may require [mediators] case
evaluators to attend orientation or training
sessions or provide written materials explaining the
[mediation] case evaluation process and
the operation of the court's [mediation] case
evaluation program. However, [mediators]
case evaluators may not be charged any fees or
costs for such programs or materials.
(C) Assignments to Panels.
(1) Method of Assignment. The [mediation]
ADR clerk shall assign [mediators]
case evaluators to panels in a random or
rotating manner that assures as nearly as possible that
each [mediator] case evaluator on a list
or sublist is assigned approximately the same number of
cases over a period of time. If a substitute
[mediator] case evaluator must be
assigned, the same or similar assignment procedure
shall be used to select the substitute. The
[mediation] ADR clerk shall maintain
records of service of [mediators] case
evaluators on panels and shall make those records
available on request.
(2) Assignment from Sublists. If sublists of plaintiff,
defense, and neutral [mediators] case
evaluators are maintained for a particular type of
case, the panel shall include one [mediator]
case evaluator who primarily represents
plaintiffs, one [mediator] case evaluator
who primarily represents defendants, and one neutral
[mediator] case evaluator. If a judge is
assigned to a panel as permitted by MCR 2.403(D)(3),
the judge shall serve as the neutral [mediator]
case evaluator if sublists are maintained for
that class of cases.
(3) Special Panels. On stipulation of the parties, the
court may appoint a panel selected by the parties. In
such a case, the qualification requirements of subrule
(B)(2) do not apply, and the parties may agree to
modification of the procedures for conduct of
[mediation] case evaluation. Nothing in
this rule or MCR 2.403 precludes parties from
stipulating to other ADR procedures [similar
to mediation] that may aid in resolution of the
case.
(D) Supervision of Selection Process.
(1) The chief judge shall exercise general supervision over
the implementation of this rule and shall review the
operation of the court's [mediation] case
evaluation plan at least annually to assure
compliance with this rule. In the event of
non-compliance, the court shall take such action as is
needed. This action may include recruiting persons to
serve as [mediators] case evaluators or
changing the court's [mediation] case
evaluation plan. The court shall submit an annual
report to the State Court Administrator on the
operation of the court's [mediation] case
evaluation program on a form provided by the State
Court Administrator.
(2) In implementing the selection plan, the court, court
employees, and attorneys involved in the procedure
shall take all steps necessary to assure that as far as
reasonably possible the list of [mediators]
case evaluators fairly reflects the racial,
ethnic, and gender diversity of the members of the
state bar in the jurisdiction for which the list is
compiled who are eligible to serve as
[mediators] case evaluators.
Rule 2.405 Offers to Stipulate to Entry of Judgment
(A) – (D) [Unchanged.]
(E) Relationship to Case Evaluation. Costs may not be
awarded under this rule in a case that has been submitted to
[mediation] case evaluation under MCR 2.403
unless the [mediation] case evaluation award
was not unanimous.
Rule 2.410 Alternative Dispute Resolution
(A) Scope and Applicability of Rule; Definitions.
(1) All civil cases are subject to alternative dispute
resolution processes unless otherwise provided by
statute or court rule.
(2) For the purposes of this rule, alternative dispute
resolution (ADR) means any process designed to resolve
a legal dispute in the place of court adjudication, and
includes settlement conferences ordered under MCR
2.401; case evaluation under MCR 2.403; mediation under
MCR 2.411; domestic relations mediation under MCR
3.216; and other procedures provided by local court
rule or ordered on stipulation of the parties.
(B) ADR Plan.
(1) Each trial court that submits cases to ADR processes
under this rule shall adopt an ADR plan by local
administrative order. The plan must be in writing and
available to the public in the ADR clerk's office.
(2) At a minimum, the ADR plan must:
(a) designate an ADR clerk, who may be the clerk of
the court, the court administrator, the assignment
clerk, or some other person;
(b) if the court refers cases to mediation under MCR
2.411, specify how the list of persons available
to serve as mediators will be maintained and the
system by which mediators will be assigned from
the list under MCR 2.411(B)(3);
(c) include provisions for disseminating information
about the operation of the court's ADR program to
litigants and the public; and
(d) specify how access to ADR processes will be
provided for indigent persons. If a party
qualifies for waiver of filing fees under MCR
2.002 or the court determines on other grounds
that the party is unable to pay the full cost of
an ADR provider's services, and free or low-cost
dispute resolution services are not available, the
court shall not order that party to participate in
an ADR process.
(3) The plan may also provide for referral relationships
with local dispute resolution centers, including those
affiliated with the Community Dispute Resolution
Program.
(4) Courts in adjoining circuits or districts may jointly
adopt and administer an ADR plan.
(C) Order for ADR.
(1) At any time, after consultation with the parties, the
court may order that a case be submitted to an
appropriate ADR process. More than one such order may
be entered in a case.
(2) Unless the specific rule under which the case is
referred provides otherwise, in addition to other
provisions the court considers appropriate, the order
shall
(a) specify, or make provision for selection of, the
ADR provider;
(b) provide time limits for initiation and completion
of the ADR process; and
(c) make provision for the payment of the ADR
provider.
(3) The order may require attendance at ADR proceedings as
provided in subrule (D).
(D) Attendance at ADR Proceedings.
(1) Appearance of Counsel. The attorneys attending an ADR
proceeding shall be thoroughly familiar with the case
and have the authority necessary to fully participate
in the proceeding. The court may direct that the
attorneys who intend to try the case attend ADR
proceedings.
(2) Presence of Parties. The court may direct that persons
with authority to settle a case, including the parties
to the action, agents of parties, representatives of
lien holders, or representatives of insurance carriers:
(a) be present at the ADR proceeding;
(b) be immediately available at the time of the
proceeding.
The court's order may specify whether the availability
is to be in person or by telephone.
(3) Failure to Attend; Default; Dismissal.
(a) Failure of a party or the party's attorney to
attend a scheduled ADR proceeding, as directed by
the court, constitutes a default to which MCR
2.603 is applicable or grounds for dismissal under
MCR 2.504(B).
(b) The court shall excuse the failure of a party or
the party's attorney to attend an ADR proceeding,
and enter an order other than one of default or
dismissal, if the court finds that
(i) entry of an order of default or dismissal
would cause manifest injustice; or
(ii) the failure to attend was not due to the
culpable negligence of the party or the attorney.
The court may condition the order on the payment
by the offending party or attorney of reasonable
expenses as provided in MCR 2.313(B)(2).
(E) Objections to ADR. Within 14 days after entry of
an order referring a case to an ADR process, a party may
move to set aside or modify the order. A timely motion must
be decided before the case is submitted to the ADR process.
(F) Supervision of ADR Plan. The chief judge shall
exercise general supervision over the implementation of this
rule and shall review the operation of the court's ADR plan
at least annually to assure compliance with this rule. In
the event of noncompliance, the court shall take such action
as is needed. This action may include recruiting persons to
serve as ADR providers or changing the court's ADR plan.
Rule 2.411 Mediation.
(A) Scope and Applicability of Rule; Definitions.
(1) This rule applies to cases that the court refers to
mediation as provided in MCR 2.410. MCR 3.216 governs
mediation of domestic relations cases.
(2) "Mediation" is a process in which a neutral third party
facilitates communication between parties, assists in
identifying issues, and helps explore solutions to
promote a mutually acceptable settlement. A mediator
has no authoritative decision-making power.
(B) Selection of Mediator.
(1) The parties may stipulate to the selection of a
mediator. A mediator selected by agreement of the
parties need not meet the qualifications set forth in
subrule (F). The court must appoint a mediator
stipulated to by the parties, provided the mediator is
willing to serve within a period that would not
interfere with the court's scheduling of the case for
trial.
(2) If the order referring the case to mediation does not
specify a mediator, the order shall set the date by
which the parties are to have conferred on the
selection of a mediator. If the parties do not advise
the ADR clerk of the mediator agreed upon by that date,
the court shall appoint one as provided in subrule
(B)(3).
(3) The procedure for selecting a mediator from the
approved list of mediators must be established by local
ADR plan adopted under MCR 2.410(B). The ADR clerk
shall assign mediators in a rotational manner that
assures as nearly as possible that each mediator on
list is assigned approximately the same number of cases
over a period of time. If a substitute mediator must
be assigned, the same or similar assignment procedure
shall be used to select the substitute.
(4) The rule for disqualification of a mediator is the same
as that provided in MCR 2.003 for the disqualification
of a judge. The mediator must promptly disclose any
potential basis for disqualification.
(C) Scheduling and Conduct of Mediation.
(1) Scheduling. The order referring the case for mediation
shall specify the time within which the mediation is to
be completed. The ADR clerk shall send a copy of the
order to each party and the mediator selected. Upon
receipt of the court's order, the mediator shall
promptly confer with the parties to schedule mediation
in accordance with the order. Factors that may be
considered in arranging the process may include the
need for limited discovery before mediation, the number
of parties and issues, and the necessity for multiple
sessions. The mediator may direct the parties to
submit in advance, or bring to the mediation, documents
or summaries providing information about the case.
(2) Conduct of Mediation. The mediator shall meet with
counsel and the parties, explain the mediation process,
and then proceed with the process. The mediator shall
discuss with the parties and counsel, if any, the facts
and issues involved. The mediation will continue until
a settlement is reached, the mediator determines that a
settlement is not likely to be reached, the end of the
first mediation session, or until a time agreed to by
the parties. Additional sessions may be held as long
as it appears that the process may result in settlement
of the case.
(3) Completion of Mediation. Within 7 days after the
completion of the ADR process, the mediator shall so
advise the court, stating only the date of completion
of the process, who participated in the mediation,
whether settlement was reached, and whether further ADR
proceedings are contemplated.
(4) Settlement. If the case is settled through mediation,
within 21 days the attorneys shall prepare and submit
to the court the appropriate documents to conclude the
case.
(5) Confidentiality. Statements made during the mediation,
including statements made in written submissions, may
not be used in any other proceedings, including trial.
Any communications between the parties or counsel and
the mediator relating to a mediation are confidential
and shall not be disclosed without the written consent
of all parties. This prohibition does not apply to
(a) the report of the mediator under subrule (C)(3),
(b) information reasonably required by court personnel
to administer and evaluate the mediation program,
(c) information necessary for the court to resolve
disputes regarding the mediator's fee, or
(d) information necessary for the court to consider
issues raised under MCR 2.410(D)(3).
(D) Fees.
(1) A mediator is entitled to reasonable compensation based
on an hourly rate commensurate with the mediator's
experience and usual charges for services performed.
(2) The costs of mediation shall be divided between the
parties on a pro-rata basis unless otherwise agreed by
the parties or ordered by the court. The mediator's
fee shall be paid no later than
(a) 42 days after the mediation process is concluded,
or
(b) the entry of judgment, or
(c) the dismissal of the action,
whichever occurs first.
(3) If acceptable to the mediator, the court may order an
arrangement for the payment of the mediator's fee other
than that provided in subrule (D)(2).
(4) The mediator's fee is deemed a cost of the action, and
the court may make an appropriate order to enforce the
payment of the fee.
(5) If a party objects to the total fee of the mediator,
the matter may be scheduled before the trial judge for
determination of the reasonableness of the fee.
(E) List of Mediators.
(1) Application. An eligible person desiring to serve as a
mediator may apply to the ADR clerk to be placed on the
court's list of mediators. Application forms shall be
available in the office of the ADR clerk.
(a) The form shall include a certification that
(i) the applicant meets the requirements for
service under the court's selection plan;
(ii) the applicant will not discriminate against
parties or attorneys on the basis of race, ethnic
origin, gender, or other protected personal
characteristic; and
(iii) the mediator will comply with the court's ADR
plan, orders of the court regarding cases
submitted to mediation, and the standards of
conduct adopted by the State Court Administrator
under subrule (G).
(b) On the form the applicant shall indicate the
applicant's hourly rate for providing mediation
services.
(c) The form shall include an optional section
identifying the applicant's gender and
racial/ethnic background.
(2) Review of Applications. The court's ADR plan shall
provide for a person or committee to review
applications annually, or more frequently if
appropriate, and compile a list of qualified mediators.
(a) Persons meeting the qualifications specified in
this rule shall be placed on the list of approved
mediators. Approved mediators shall be placed on
the list for a fixed period, not to exceed 5
years, and must reapply at the end of that time in
the same manner as persons seeking to be added to
the list.
(b) Selections shall be made without regard to race,
ethnic origin, or gender. Residency or principal
place of business may not be a qualification.
(c) The approved list and the applications of approved
mediators, except for the optional section
identifying the applicant's gender and
racial/ethnic background, shall be available to
the public in the office of the ADR clerk.
(3) Rejection; Reconsideration. Applicants who are not
placed on the list shall be notified of that decision.
Within 21 days of notification of the decision to
reject an application, the applicant may seek
reconsideration of the ADR clerk's decision by the
Chief Judge. The court does not need to provide a
hearing. Documents considered in the initial review
process shall be retained for at least the period
during which the applicant can seek reconsideration of
the original decision.
(4) Removal from List. The ADR clerk may remove from the
list mediators who have demonstrated incompetence,
bias, made themselves consistently unavailable to serve
as a mediator, or for other just cause. Within 21 days
of notification of the decision to remove a mediator
from the list, the mediator may seek reconsideration of
the ADR clerk's decision by the Chief Judge. The court
does not need to provide a hearing.
(F) Qualification of Mediators.
(1) Small Claims Mediation. District courts may develop
individual plans to establish qualifications for
persons serving as mediators in small claims cases.
(2) General Civil Mediation. To be eligible to serve as a
general civil mediator, a person must meet the
following minimum qualifications:
(a) Complete a training program approved by the State
Court Administrator providing the generally
accepted components of mediation skills;
(b) Have one or more of the following:
(i) Juris doctor degree or graduate degree in
conflict resolution; or
(ii) 40 hours of mediation experience over two
years, including mediation, co-mediation,
observation, and role-playing in the context of
mediation.
(c) Observe two general civil mediation proceedings
conducted by an approved mediator, and conduct one
general civil mediation to conclusion under the
supervision and observation of an approved
mediator.
(3) An applicant who has specialized experience or
training, but does not meet the specific requirements
of subrule (F)(2), may apply to the ADR clerk for
special approval. The ADR clerk shall make the
determination on the basis of criteria provided by the
State Court Administrator. Service as a case evaluator
under MCR 2.403 does not constitute a qualification for
serving as a mediator under this section.
(4) Approved mediators are required to obtain 8 hours of
advanced mediation training during each 2-year period.
Failure to submit documentation establishing compliance
is ground for removal from the list under
subrule(E)(4).
(5) Additional qualifications may not be imposed upon
mediators.
(G) Standards of Conduct for Mediators. The State
Court Administrator shall develop and approve standards of
conduct for mediators designed to promote honesty,
integrity, and impartiality in providing court-connected
dispute resolution services. These standards shall be made
a part of all training and educational requirements for
court-connected programs, shall be provided to all mediators
involved in court-connected programs, and shall be available
to the public.
Rule 2.501 Scheduling Trials; Court Calendars
(A) Scheduling Conferences or Trial.
(1) Unless the further processing of the action is already
governed by a scheduling order under MCR 2.401(B)(2),
the court shall
(a) [Unchanged.]
(b) schedule the action for [mediation] an
alternative dispute resolution process,
(c) – (d) [Unchanged.]
(2) [Unchanged.]
(B) – (D) [Unchanged.]
Rule 2.502 Dismissal for Lack of Progress
(A) Notice of Proposed Dismissal.
(1) [Unchanged.]
(2) A notice of proposed dismissal may not be sent with
regard to a case
(a) [Unchanged.]
(b) which is set for a conference, [mediation]
an alternative dispute resolution process,
hearing, or trial.
(3) [Unchanged.]
(B) – (C) [Unchanged.]
Rule 2.503 Adjournments
(A) Applicability. This rule applies to adjournments
of trials, [mediations] alternative dispute
resolution processes, pretrial conferences, and all
motion hearings.
(B) – (F) [Unchanged.]
Rule 3.216 Domestic Relations Mediation
(A) Scope and Applicability of Rule, Definitions.
(1) All domestic relations cases, as defined in MCL
552.502(h); MSA 25.176(2)(h), are subject to mediation
under this rule, unless otherwise provided by statute
or court rule.
(2) Domestic relations mediation is a nonbinding process in
which a neutral third party facilitates communication
between parties to promote settlement. If the parties
so request, and the mediator agrees to do so, the
mediator may provide a written recommendation for
settlement of any issues that remain unresolved at the
conclusion of a mediation proceeding. This procedure,
known as evaluative mediation, is governed by subrule
(I).
(3) This rule does not restrict the Friend of the Court
from enforcing custody, parenting time, and support
orders.
(4) The court may order, on stipulation of the parties, the
use of other settlement procedures.
(B) Mediation Plan. Each trial court that submits
domestic relations cases to mediation under this rule shall
include in its alternative dispute resolution plan adopted
under MCR 2.410(B) provisions governing selection of
domestic relations mediators, and for providing parties with
information about mediation in the family division as soon
as reasonably practical.
(C) Referral to Mediation.
(1) On written stipulation of the parties, on written
motion of a party, or on the court's initiative, the
court may submit to mediation by written order any
contested issue in a domestic relations case, including
postjudgment matters.
(2) The court may not submit contested issues to evaluative
mediation unless all parties so request.
(3) Parties who are subject to a personal protection order
or who are involved in a child abuse and neglect
proceeding may not be referred to mediation without a
hearing to determine whether mediation is appropriate.
(D) Objections to Referral to Mediation.
(1) To object to mediation, a party must file a written
motion to remove the case from mediation and a notice
of hearing of the motion, and serve a copy on the
attorneys of record within 14 days after receiving
notice of the order assigning the action to mediation.
The motion must be set for hearing within 14 days after
it is filed, unless the hearing is adjourned by
agreement of counsel or unless the court orders
otherwise.
(2) A timely motion must be heard before the case is
mediated.
(3) Cases may be exempt from mediation on the basis of the
following:
(a) child abuse or neglect;
(b) domestic abuse, unless attorneys for both parties
will be present at the mediation session;
(c) inability of one or both parties to negotiate for
themselves at the mediation, unless attorneys for
both parties will be present at the mediation
session;
(d) reason to believe that one or both parties' health
or safety would be endangered by mediation; or
(e) for other good cause shown.
(E) Selection of Mediator.
(1) Domestic relations mediation will be conducted by a
mediator selected as provided in this subrule.
(2) The parties may stipulate to the selection of a
mediator. A mediator selected by agreement of the
parties need not meet the qualifications set forth in
subrule (G). The court must appoint a mediator
stipulated to by the parties, provided the mediator is
willing to serve within a period that would not
interfere with the court's scheduling of the case for
trial.
(3) If the parties have not stipulated to a mediator, the
parties must indicate whether they prefer a mediator
who is willing conduct evaluative mediation. Failure
to indicate a preference will be treated as not
requesting evaluative mediation.
(4) If the parties have not stipulated to a mediator, the
judge may recommend, but not appoint one. If the judge
does not make a recommendation, or if the
recommendation is not accepted by the parties, the ADR
clerk will assign a mediator from the list of qualified
mediators maintained under subrule (F). The assignment
shall be made on a rotational basis, except that if the
parties have requested evaluative mediation, only a
mediator who is willing to provide an evaluation may be
assigned.
(5) The rule for disqualification of a mediator is the same
as that provided in MCR 2.003 for the disqualification
of a judge. The mediator must promptly disclose any
potential basis for disqualification.
(F) List of Mediators.
(1) Application. An eligible person desiring to serve as a
domestic relations mediator may apply to the ADR clerk
to be placed on the court's list of mediators.
Application forms shall be available in the office of
the ADR clerk.
(a) The form shall include a certification that
(i) the applicant meets the requirements for
service under the court's selection plan;
(ii) the applicant will not discriminate against
parties or attorneys on the basis of race, ethnic
origin, gender, or other protected personal
characteristic; and
(iii) the mediator will comply with the court's ADR
plan, orders of the court regarding cases
submitted to mediation, and the standards of
conduct adopted by the State Court Administrator
under subrule (K).
(b) The applicant shall indicate on the form whether
the applicant is willing to offer evaluative
mediation, and the applicant's hourly rate for
providing mediation services.
(c) The form shall include an optional section
identifying the applicant's gender and
racial/ethnic background; however, this section
shall not be made available to the public.
(2) Review of Applications. The court's ADR plan shall
provide for a person or committee to review
applications annually, or more frequently if
appropriate, and compile a list of qualified mediators.
(a) Persons meeting the qualifications specified in
this rule shall be placed on the list of approved
mediators. Approved mediators shall be placed on
the list for a fixed period, not to exceed 5
years, and must reapply at the end of that time in
the same manner as persons seeking to be added to
the list.
(b) Selections shall be made without regard to race,
ethnic origin, or gender. Residency or principal
place of business may not be a qualification.
(c) The approved list and the applications of approved
mediators, except for the optional section
identifying the applicant's gender and
racial/ethnic background, shall be available to
the public in the office of the ADR clerk.
(3) Rejection; Reconsideration. Applicants who are not
placed on the list shall be notified of that decision.
Within 21 days of notification of the decision to
reject an application, the applicant may seek
reconsideration of the ADR clerk's decision by the
presiding judge of the family division. The court does
not need to provide a hearing. Documents considered in
the initial review process shall be retained for at
least the period during which the applicant can seek
reconsideration of the original decision.
(4) Removal from List. The ADR clerk may remove from the
list mediators who have demonstrated incompetence,
bias, made themselves consistently unavailable to serve
as a mediator, or for other just cause. Within 21 days
of notification of the decision to remove a mediator
from the list, the mediator may seek reconsideration of
the ADR clerk's decision by the presiding judge of the
family division. The court does not need to provide a
hearing.
(G) Qualification of Mediators.
(1) To be eligible to serve as a domestic relations
mediator under this rule, a applicant must meet
the following minimum qualifications:
(a) The applicant must
(i) be a licensed attorney, a licensed or limited
licensed psychologist, a licensed
professional counselor, or a licensed
marriage and family therapist;
(ii) have a masters degree in counseling, social
work, or marriage and family therapy;
(iii) have a graduate degree in a behavioral
science; or
(iv) have 5 years experience in family counseling.
(b) The applicant must have completed a training
program approved by the State Court Administrator
providing the generally accepted components of
domestic relations mediation skills.
(c) The applicant must have observed two domestic
relations mediation proceedings conducted by an
approved mediator, and have conducted one domestic
relations mediation to conclusion under the
supervision and observation of an approved
mediator.
(2) An applicant who has specialized experience or
training, but does not meet the specific requirements
of subrule (G)(1), may apply to the ADR clerk for
special approval. The ADR clerk shall make the
determination on the basis of criteria provided by the
State Court Administrator.
(3) Approved mediators are required to obtain 8 hours of
advanced mediation training during each 2-year period.
Failure to submit documentation establishing compliance
is grounds for removal from the list under
subrule(F)(4).
(4) Additional qualifications may not be imposed upon
mediators.
(H) Mediation Procedure.
(1) The mediator must schedule a mediation session within a
reasonable time at a location accessible by the
parties.
(2) A mediator may require that no later than 3 business
days before the mediation session, each party submit to
the mediator, and serve on the opposing party, a
mediation summary that provides the following
information, where relevant:
(a) the facts and circumstances of the case;
(b) the issues in dispute;
(c) a description of the marital assets and their
estimated value, where such information is
appropriate and reasonably ascertainable;
(d) the income and expenses of the parties;
(e) a proposed settlement; and
(f) such documentary evidence as may be available to
substantiate information contained in the summary.
Failure to submit these materials to the mediator
within the designated time may subject the offending
party to sanctions imposed by the court.
(3) The parties must attend the mediation session in person
unless excused by the mediator.
(4) Except for legal counsel, the parties may not bring
other persons to the mediation session, whether expert
or lay witnesses, unless permission is first obtained
from the mediator, after notice to opposing counsel.
If the mediator believes it would be helpful to the
settlement of the case, the mediator may request
information or assistance from third persons at the
time of the mediation session.
(5) The mediator shall discuss with the parties and
counsel, if any, the facts and issues involved. The
mediation will continue until a settlement is reached,
the mediator determines that a settlement is not likely
to be reached, the end of the first mediation session,
or until a time agreed to by the parties.
(6) Within 7 days of the completion of mediation, the
mediator shall so advise the court, stating only the
date of completion of the process, who participated in
the mediation, whether settlement was reached, and
whether further ADR proceedings are contemplated. If
an evaluation will be made under subrule (I), the
mediator may delay reporting to the court until
completion of the evaluation process.
(7) If a settlement is reached as a result of the
mediation, to be binding, the terms of that settlement
must be reduced to a signed writing by the parties or
acknowledged by the parties on an audio or video
recording. After a settlement has been reached, the
parties shall take steps necessary to enter judgment as
in the case of other settlements.
(8) Statements made during the mediation, including
statements made in written submissions, may not be used
in any other proceedings, including trial. Any
communications between the parties or counsel and the
mediator relating to a mediation are confidential and
shall not be disclosed without the written consent of
all parties. This prohibition does not apply to
(a) the report of the mediator under subrule (H)(6),
(b) information reasonably required by court personnel
to administer and evaluate the mediation program,
(c) information necessary for the court to resolve
disputes regarding the mediator's fee, or
(d) information necessary for the court to consider
issues raised under MCR 2.410(D)(3) or
3.216(H)(2).
(I) Evaluative Mediation.
(1) This subrule applies if the parties requested
evaluative mediation, or if they do so at the
conclusion of mediation and the mediator is willing to
provide an evaluation.
(2) If a settlement is not reached during mediation, the
mediator, within a reasonable period after the
conclusion of mediation shall prepare a written report
to the parties setting forth the mediator's proposed
recommendation for settlement purposes only. The
mediator's recommendation shall be submitted to the
parties of record only and may not be submitted or made
available to the court.
(3) If both parties accept the mediator's recommendation in
full, the attorneys shall proceed to have a judgment
entered in conformity with the recommendation.
(4) If the mediator's recommendation is not accepted in
full by both parties and the parties are unable to
reach an agreement as to the remaining contested
issues, mediator shall report to the court under
subrule (H)(6), and the case shall proceed toward
trial.
(5) A court may not impose sanctions against either party
for rejecting the mediator's recommendation. The court
may not inquire and neither the parties nor the
mediator may inform the court of the identity of the
party or parties who rejected the mediator's
recommendation.
(6) The mediator's report and recommendation may not be
read by the court and may not be admitted into evidence
or relied upon by the court as evidence of any of the
information contained in it without the consent of both
parties. The court shall not request the parties'
consent to read the mediator's recommendation.
(J) Fees.
(1) A mediator is entitled to reasonable compensation based
on an hourly rate commensurate with the mediator's
experience and usual charges for services performed.
(2) Before mediation, the parties shall agree in writing
that each shall pay one-half of the mediator's fee no
later than:
(a) 42 days after the mediation process is concluded
or the service of the mediator's report and
recommendation under subrule (I)(2), or
(b) the entry of judgment, or
(c) the dismissal of the action,
whichever occurs first. If the court finds that some
other allocation of fees is appropriate, given the
economic circumstances of the parties, the court may
order that one of the parties pay more than one-half of
the fee.
(3) If acceptable to the mediator, the court may order an
arrangement for the payment of the mediator's fee other
than that provided in subrule (J)(2).
(4) The mediator's fee is deemed a cost of the action, and
the court may make an appropriate judgment under MCL
552.13(l); MSA 25.93(l) to enforce the payment of the
fee.
(5) In the event either party objects to the total fee of
the mediator, the matter may be scheduled before the
trial judge for determination of the reasonableness of
the fee.
(K) Standards of Conduct. The State Court
Administrator shall develop and approve standards of conduct
for domestic relations mediators designed to promote
honesty, integrity, and impartiality in providing
court-connected dispute resolution services. These
standards shall be made a part of all training and
educational requirements for court-connected programs, shall
be provided to all mediators involved in court-connected
programs, and shall be available to the public.
[Note: Former MCR 5.403 was redesignated as MCR 5.143 by
the March 24, 2000, interim amendments of Chapter 5,
governing probate court.]
Rule 5.143 [ Mediation] Alternative
Dispute Resolution
(A) The court may submit to mediation,
case evaluation, or other alternative dispute resolution
process one or more requests for relief in any contested
proceeding. MCR 2.410 applies to the extent
feasible.
(B) If a dispute is submitted to case
evaluation, [Procedures of] MCR 2.403 and
2.404 shall apply to the extent feasible, except
that sanctions must not be awarded unless the subject
matter of the [mediation] case evaluation
involves money damages or division of property.
Staff Comment: The May 8, 2000, amendments are
based on the recommendations of the Michigan Supreme
Court Dispute Resolution Task Force, which were
published for comment on May 10, 1999 [see 459 Mich
1251], and were the subject of a series of public
hearings across the state.
The Task Force report, issued in January 1999, and its
Addendum report, issued in January 2000 after receipt
of comments, should be consulted for the background and
details of the amendments. Basically, the changes are
as follows:
The amendments of MCR 2.403, 2.404, 2.405, 2.501, 2.502
and 2.503 are mainly to change terminology, replacing
"mediation," as used in current MCR 2.403, with the
term "case evaluation." "Mediation" will be used to
describe the facilitative process established in MCR
2.411, in keeping with the generally accepted usage of
the term.
MCR 2.401 is amended to direct consideration of
alternative dispute resolution processes at scheduling
and pretrial conferences.
New MCR 2.410 has general provisions governing referral
of cases to alternative dispute resolution processes.
Local courts wishing to use ADR techniques are to adopt
ADR plans within the framework provided by the rule.
The one ADR process that is specifically established by
the rules is mediation under new MCR 2.411. Among
other things, the rule establishes general standards
for mediator qualifications, and procedures for
selection of mediators.
MCR 3.216, the domestic relations mediation rule, is
substantially revised, to be more comparable to the
mediation process in MCR 2.411.
MCR 5.143, regarding use of alternative dispute
resolution processes in probate court, is amended to
conform to the other rule changes.
The staff comment is published only for the benefit of
the bench and bar and is not an authoritative
construction by the Court.
Kelly, J. (dissenting).
I support the expanded use of alternative dispute
resolution by our courts. However, I cannot cast a
vote favoring the proposed Dispute Resolution Court
Rules for two reasons: 1) they authorize judges to
compel parties to submit to mediation and 2) they
include nonlawyers as mediators and other ADR
providers.
Regarding the mandatory nature of the new rules, I
believe that mediation is, by its very nature, a
process that works only when the parties enter into it
voluntarily. I would support rules that permit courts
to order parties to a session at which the merits of
ADR are explored, but not that mandate mediation.
It is my fear that mandatory mediation will
present insurmountable financial obstacles to low
income litigants and could even provoke challenges
based on a violation of due process principles. I am
concerned that, in some heavily burdened courts, judges
may use the new rules, not as an option for the
parties, but as a docket control mechanism for the
court. Also, I find no limit in the rules to the
number of times a party could be ordered to an ADR
process.
Mediation should not become yet another hurdle to
a just resolution of disputes. Parties should not feel
pressed to settle against their best interests, or
involuntarily to expend financial resources in excess
of the normal costs of trial. Litigation, without the
new rules, is already too costly.
I agree with the Board of Commissioners of the
State Bar of Michigan that, absent agreement of the
parties, only licensed lawyers should be allowed to
serve as ADR providers. Mediation and other types of
ADR typically involve complex legal matters requiring
skilled ADR providers. Yet, no system has been
developed to ensure the training and accountability of
nonlawyers who participate.
Finally, I agree with the Open Justice
Commission's recommendations that chief judges should
be required to report the race, ethnicity, and gender
of case evaluators and other ADR providers that they
appoint. I view this as a vital step toward ensuring
persons wishing to function as ADR providers will not
be passed over solely on the basis of their race,
gender, ethnic background, or similar factors.