ICLE Homepage | Other New and Amended MCRs
See the Court's amended order issued on May 13, 1999
May 10, 1999
ADM 99-02
Amendments of MCR 2.401,
2.403, 2.404, 3.216, 5.403;
Adoption of MCR 2.410, 2.411
___________________________________________________________
On order of the Court, this is to advise that the Court is
considering proposals submitted by the Michigan Supreme Court Dispute
Resolution Task Force to amend MCR 2.401, 2.403, 2.404, 3.216, 5.403
and to adopt new rules MCR 2.410 and 2.411. Before determining
whether the rule proposals should be adopted, changed before
adoption, or rejected, this notice is given to afford any interested
person the opportunity to comment on the form or the merits of the
proposed amendments and new rules.
We welcome the views of all who wish to address the rule
proposals or who wish to suggest alternatives. The Court is
particularly interested in receiving comment on provisions of the
proposed new rules which authorize courts to order parties to utilize
a nonbinding alternative dispute resolution process.
The Michigan Supreme Court convened the Michigan Supreme Court
Dispute Resolution Task Force in early 1998 to provide
recommendations for new and amended court rules, guidelines,
standards, and proposed statutory amendments which would facilitate
the integration of dispute resolution processes in the trial courts.
The task force conveyed its report to the Michigan Supreme Court in
January, 1999. Copies of the task force's report may be obtained from
the State Court Administrative Office. We emphasize, however, that
in this Order, the Supreme Court is addressing only the rule
changes proposed by the task force.
As whenever this Court publishes an administrative proposal for
comment, we emphasize that publication of this proposal does not mean
that the Court will issue an order on the subject, nor does it imply
probable adoption of the proposal in its present form.
ICLE Editor's Note:
[Italicized, bracketed text] indicates text that has been
deleted.
Bold text indicates new text.
SUBCHAPTER 2.400 PRETRIAL PROCEDURE; ALTERNATIVE DISPUTE
RESOLUTION; [MEDIATION]; 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:
(a) consider whether jurisdiction and venue are
proper or whether the case is frivolous,
(b) refer the case to alternative dispute
resolution if appropriate, either by agreement of the
parties or, in the case of nonbinding alternative dispute
resolution, pursuant to court order, and
(c)[(b)] 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
(i) the initiation or completion of an
ADR process,
(ii)[(i)] the completion of discovery,
(iii)[(ii)] the exchange of witness
lists under subrule (I), and
(iv)[(iii)] 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,
case evaluation, or other ADR process, 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 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) the simplification of the issues;
(b) the amount of time necessary for discovery;
(c) the necessity or desirability of amendments to the
pleadings;
(d) the possibility of obtaining admissions of fact
and of documents to avoid unnecessary proof;
(e) the limitation of the number of expert witnesses;
(f) the consolidation of actions for trial, the
separation of issues, and the order of trial when some
issues are to be tried by a jury and some by the court;
(g) the possibility of settlement;
(h) whether mediation, case evaluation, or some
other form of alternative dispute resolution would be
appropriate for the case;
(i) the identity of the witnesses to testify
at trial;
(j) the estimated length of trial;
(k) whether all claims arising out of the transaction
or occurrence that is the subject matter of the action have
been joined as required by MCR 2.203(A);
(l) other matters that may aid in the disposition of
the action.
(2) Conference Order. If appropriate, the court shall
enter an order incorporating agreements reached and decisions
made at the conference.
(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 clerk of the court, the court administrator, the
assignment clerk, or some other person to serve as the
[mediation] ADR clerk.
(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
[mediation] case evaluators and the attorneys at
least 42 days before the date set.
(2) Adjournments may be granted only for good cause, in
accordance with MCR 2.503.
(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 [mediation] 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) Only a single fee is required of each party, even where
there are counterclaims, cross-claims, or third party claims.
(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
(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) Statements by the attorneys and the briefs or summaries
are not admissible in any court or evidentiary proceeding.
(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) Each party has the option of accepting
all of the awards covering the claims by or against that
party or of accepting some and rejecting others. However,
as to any particular opposing party, the party must either
accept or reject the evaluation in its entirety.
(b) A party who accepts all of the awards
may specifically indicate that he or she intends the
acceptance to be effective only if
(i) all opposing parties accept, and/or
(ii) the opposing parties accept
as to specified coparties.
If such a limitation is not included in the acceptance, an
accepting party is deemed to have agreed to entry of judgment,
or dismissal as provided in subrule (M)(1), as to that party and
those of the opposing parties who accept, with the action to
continue between the accepting party and those opposing parties
who reject.
(c) If a party makes a limited acceptance under
subrule (L)(3)(b) and some of the opposing parties accept
and others reject, for the purposes of the cost provisions
of subrule (O) the party who made the limited acceptance is
deemed to have rejected as to those opposing parties who
accept.
(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) After reviewing the materials submitted,
the court shall determine whether the action or defense is
frivolous.
(c) If the court agrees with the panel's
determination, the provisions of subrule (N)(3) apply,
except that the bond must be filed within 28 days after the
entry of the court's order determining the action or
defense to be frivolous.
(d) The judge who hears a motion under this
subrule may not preside at a nonjury trial of the action.
(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) If a surety bond is filed, an insurance
company that insures the defendant against a claim made in
the action may not act as the surety.
(c) If the bond is not posted as required by
this rule, the court shall dismiss a claim found to have
been frivolous, and enter the default of a defendant whose
defense was found to be frivolous. The action shall proceed
to trial as to the remaining claims and parties, and as to
the amount of damages against a defendant in default.
(d) If judgment is entered against the party
who posted the bond, the bond shall be used to pay any
costs awarded against that party by the court under any
applicable law or court rule. MCR 3.604 applies to
proceedings to enforce the bond.
(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) Except as provided by subrule (O)(10),
in a personal injury action, for the purpose of subrule
(O)(1), the verdict against a particular defendant shall
not be adjusted by applying that defendant's proportion of
fault as determined under MCL 600.6304(1)-(2); MSA
27A.6304(1)-(2).
(5) If the verdict awards equitable relief, costs may be
awarded if the court determines that
(a) taking into account both monetary relief
(adjusted as provided in subrule [O][3]) and equitable
relief, the verdict is not more favorable to the rejecting
party than the evaluation, and
(b) it is fair to award costs under all of
the circumstances.
(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) A request for costs under this subrule must be filed
and served within 28 days after the entry of the judgment or
entry of an order denying a timely motion for a new trial or to
set aside the judgment.
(9) In an action under MCL 436.22; MSA 18.993, if the
plaintiff rejects the award against the minor or alleged
intoxicated person, or is deemed to have rejected such an award
under subrule (L)(3)(c), the court shall not award costs against
the plaintiff in favor of the minor or alleged intoxicated
person unless it finds that the rejection was not motivated by
the need to comply with MCL 436.22(6); MSA 18.993(6).
(10) In an action filed on or after March 28, 1996, for the
purpose of subrule (O)(1), a verdict awarding damages for
personal injury, property damage, or wrongful death shall be
adjusted for relative fault as provided by MCL 600.6304; MSA
27A.6304.
(11) If the "verdict" is the result of a motion as provided
by subrule (O)(2)(c), the court may, in the interest of justice,
refuse to award actual costs.
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 evaluator 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) If an individual performs this review function,
the person must be an employee of the court.
(b) If a committee performs this review function, the
following provisions apply.
(i) The committee must have at least three
members.
(ii) The selection of committee members shall be
designed to assure that the goals stated in subrule
(D)(2) will be met.
(iii) A person may not serve on the committee
more than 3 years in any 9-year period.
(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] case
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 [mediato]r 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 noncompliance, 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 2.410 ALTERNATIVE DISPUTE RESOLUTION (New)
(A) Scope and Applicability of Rule. All civil cases are
subject to Alternative Dispute Resolution (ADR) processes unless
otherwise provided by statute or court rule. Mediation of domestic
relations actions is governed by MCR 3.216.
(B) Definitions. The following terms shall have the meanings
set forth in this rule in applying and construing these rules with
regard to ADR proceedings. The terms are not meant to restrict or
limit the use of other ADR processes created by agreement of the
parties.
(1) Alternative dispute resolution (ADR): Includes any
process designed to resolve a legal dispute in the place of
court adjudication.
(2) ADR provider: An individual or organization providing
an ADR process. An individual ADR provider may be required to
satisfy training and continuing education requirements as set
forth in MCR 2.411.
(3) Arbitration: A forum in which each party and its
counsel present its position before a neutral third party, who
renders a specific award. If the parties stipulate in advance,
the award is binding and is enforceable in the same manner as
any contractual obligation. If the parties do not stipulate
that the award is binding, the award is not binding, and a
request for trial de novo may be made.
(4) Consensual Special Magistrate: A forum in which a
dispute is presented to a neutral third party in the same manner
as a civil lawsuit is presented to a judge. This process is
binding and precludes the right of appeal.
(5) Moderated Settlement Conference: A forum in which each
party and the party's counsel present their position before a
neutral or panel of neutral third parties. The panel may issue
a nonbinding advisory opinion regarding liability, damages, or
both.
(6) Summary Jury Trial: A forum in which each party and
the party's counsel present a summary of their position before
a panel of jurors. The number of jurors on the panel is six
unless the parties agree otherwise. The panel may issue a
nonbinding advisory opinion regarding liability, damages, or
both.
(7) Early Neutral Evaluation: A forum in which attorneys
present the core of the dispute to a neutral evaluator in the
presence of the parties. This occurs after the case is filed,
but before discovery is conducted. The neutral evaluator then
gives a candid nonbinding assessment of the strengths and
weaknesses of the case. If settlement does not result, the
neutral evaluator helps narrow the dispute and suggests
guidelines for managing discovery.
(8) Neutral Fact Finding: A forum in which a dispute,
frequently one involving complex or technical issues, is
investigated and analyzed by an agreed-upon neutral fact finder
who issues findings and a nonbinding report or recommendation.
(9) Case Evaluation: A forum in which attorneys present
the core of the dispute to a panel of attorneys as described in
MCR 2.403.
(10) Minitrial: A forum in which each party and the
party's minitrial counsel present their opinion, either before
a selected representative for each party, before a neutral third
party, or both to define the issues and develop a basis for
realistic settlement negotiations. A neutral third party may
issue an advisory opinion regarding the merits of the case. The
advisory opinion is not binding unless the parties agree that it
is binding and enter into a written settlement agreement.
(11) Mediation-Arbitration (Med-Arb): A hybrid of
mediation and arbitration in which the parties initially mediate
their disputes; but, if impasse is reached, remaining issues are
arbitrated and the results of arbitration are binding on the
parties unless otherwise agreed.
(12) Mediation: A forum in which a neutral third party
facilitates communication between parties, assists in
identifying issues, and helps explore solutions to promote a
mutually acceptable settlement, and otherwise meets the
requirements of MCR 2.411. A mediator has no authoritative
decision-making power.
(C) ADR Clerk. The court shall designate the clerk of the
court, the court administrator, the assignment clerk, or some other
person to serve as the ADR clerk.
(D) Notice of ADR Processes. The court shall provide parties
with information about available ADR processes as soon as reasonably
practical. The information may include a list of ADR service
providers.
(E) Selection of ADR Process.
(1) As soon as reasonably practical, the scheduling of a
nonbinding ADR process under this subrule may be made after
consultation with all parties.
(2) If the parties cannot agree on an ADR process, or if
the court does not approve of the parties' selection of an ADR
process, the court may order the parties to utilize a nonbinding
ADR process, or may find that ADR is not appropriate.
(3) The court's order shall designate the ADR process
selected and the deadline for initiating the procedure. If ADR
is determined to be inappropriate, the order shall so indicate.
(4) Upon motion by any party, or on its own initiative, the
court may, at any time, issue an order for parties to
participate in any nonbinding ADR process.
(5) A party may move, within 15 days after entry of an
order to a nonbinding ADR process, to waive participation in the
ADR process for good cause shown.
(F) Selection of ADR Provider.
(1) As soon as reasonably practical after the selection of
an ADR process, parties shall select an ADR provider. If the
parties are unable to agree on an ADR provider, the court shall
appoint one from an approved list of ADR providers after
consultation with all parties.
(2) The procedure for selecting an ADR provider from an
approved list of ADR providers must be established by local
administrative order adopted pursuant to MCR 8.112(B). A judge
may be selected, but may not receive any payment and may not be
the judge assigned the case. The rule for disqualification is
the same as that provided in MCR 2.003 for the disqualification
of a judge.
(3) The selection of ADR providers serving as case
evaluators pursuant to MCR 2.403 is governed by MCR 2.404.
(G) Time and Place of Proceedings. Upon receipt of the court's
order, the ADR provider shall promptly work with the attorneys and
parties to schedule the ADR process in accordance with the order.
Factors that may be considered in arranging the process may include
the need for limited discovery before the process, the number of
parties and issues, and the necessity for multiple sessions.
(H) Final Disposition. If the case is settled through an ADR
process, the attorneys shall complete the appropriate court documents
to conclude the case (i.e., stipulation and order to dismiss, consent
judgment, or other documents). Within 10 days of the completion of
the ADR process, the ADR provider shall advise the court, stating
only who participated in the process, whether settlement was reached,
and whether further ADR proceedings are contemplated.
(I) 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).
(J) Fees.
(1) An ADR provider is entitled to reasonable compensation
based on an hourly rate commensurate with the ADR provider's
experience and usual charges for services performed. ADR
providers shall disclose their hourly rate on any lists of ADR
providers made available to the public by courts or the State
Court Administrative Office.
(2) The parties shall divide the costs of an ADR process on
a pro-rata basis unless otherwise agreed by the parties. The
ADR provider's fee shall be paid no later than
(a) 45 days after the ADR process is concluded, or
(b) the entry of judgment, or
(c) the dismissal of the action, whichever occurs
first.
(3) If acceptable to the ADR provider, the court may order
an arrangement for the payment of the ADR provider's fee other
than that provided in subrule (J)(2).
(4) 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 for 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.
(5) The ADR provider's fee is deemed a cost of the action,
and the court may make an appropriate judgment to enforce the
payment of the fee.
(6) In the event either party objects to the total fee of
the ADR provider, the matter may be scheduled before the trial
judge for determination of the reasonableness of the fee.
(K) Confidentiality. Statements made during the ADR process,
including statements made in briefs or other written submissions, may
not be used in any other proceedings, including trial, unless the
statement was quoting admissible evidence.
Rule 2.411 QUALIFICATION OF ADR PROVIDERS; STANDARDS OF CONDUCT (New)
(A) Approval and Retention of ADR Providers.
(1) Requirement. Each trial court that submits cases to
ADR processes under MCR 2.410 shall adopt by local
administrative order an ADR plan to maintain a list of persons
available to serve as ADR providers and to assign ADR providers
from the list.
(a) Plans incorporating the selection of ADR providers
not serving as mediators must include provisions governing
the qualifications of nonmediator ADR providers.
(b) The plan must be in writing and available to the
public in the ADR clerk's office.
(c) The selection of ADR providers serving as case
evaluators pursuant to MCR 2.403 is governed by MCR 2.404.
The selection of ADR providers serving as domestic
relations mediators is governed by MCR 3.216.
(2) ADR Provider Application. An eligible person desiring
to serve as an ADR provider may apply to the ADR clerk to be
placed on the list of ADR providers. Application forms shall be
available in the office of the 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 ADR provider meets the requirements for
service under the court's selection plan, and
(b) the ADR provider will not discriminate against
parties or attorneys on the basis of race, ethnic origin,
gender, or other protected personal characteristic.
(3) Review of ADR provider Applications. The plan shall
provide for a person or committee to review applications
annually, or more frequently if appropriate, and compile a list
of qualified ADR providers.
(a) Persons meeting the qualifications
specified in this rule shall be placed on the list of
approved ADR providers. Selections shall be made without
regard to race, ethnic origin, or gender. Residency or
principal place of business may not be a qualification.
Applications of approved ADR providers shall be available
to the public in the office of the ADR clerk.
(b) Applicants who are not placed on the ADR
provider 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) Reapplication. Persons shall be placed on the list of
ADR providers 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.
(5) Removal from List. The ADR clerk shall remove from the
list any ADR providers who have demonstrated incompetency, bias,
made themselves consistently unavailable to serve as an ADR
provider, or for other just cause. Within 21 days of
notification of the decision to remove an ADR provider from the
list, the ADR provider may seek reconsideration of the ADR
clerk's decision by the Chief Judge. The court does not need to
provide a hearing.
(B) Supervision of the ADR Provider 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 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.
(2) In implementing the ADR provider 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 ADR providers 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 ADR providers.
(C) 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
general civil mediator, a person must meet the following minimum
qualifications:
(a) Complete a training program approved by the State
Court Administrator that contains the following components
of mediation skills:
(i) information gathering
(ii) mediator relationship skills
(iii)communication skills
(iv) problem-solving skills
(v) conflict-management skills
(vi) ethics
(vii)professional skills
(viii)working with lawyers in mediation
(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) Approved mediators are required to obtain 8 hours of
advanced mediation training during each 2-year period.
(4) If an applicant has specialized experience or training,
but does not specifically meet the requirements set forth above,
the applicant may apply to the ADR clerk for special approval.
The ADR clerk shall make a determination on the basis of
criteria provided by the State Court Administrator. Service as
a case evaluator pursuant to MCR 2.403 shall not count as
meeting qualifications to serve as a mediator under this
section.
(5) Additional qualifications may not be imposed upon
mediators.
(D) Party Stipulation to Mediators and Other ADR Providers.
The parties may stipulate to use any mediator or other ADR provider,
whether or not they are deemed qualified under MCR 2.411.
(E) Qualification of Other ADR Providers. The State Court
Administrative Office may establish qualifications for ADR providers
not serving as mediators.
(F) Standards of Conduct for Mediators.
(1) Introduction. These standards of conduct apply to all
persons who act as a mediator pursuant to the dispute resolution
programs of the court. They are 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.
(2) Self-Determination. A mediator shall recognize that
mediation is based upon the principle of self-determination by
the parties. This principle requires that the mediation process
rely upon the ability of the parties to reach a voluntary,
uncoerced agreement.
(3) Impartiality. A mediator shall conduct the mediation
in an impartial manner. The concept of mediator impartiality is
central to the mediation process. A mediator shall mediate only
those matters in which it is possible to remain impartial and
even-handed. If at any time the mediator is unable to conduct
the process in an impartial manner, the mediator is obligated to
withdraw.
(4) Conflict of Interest.
(a) A conflict of interest is a dealing or
relationship that might create an impression of possible
bias or could reasonably be seen as raising a question
about impartiality. A mediator shall disclose all actual
and potential conflicts of interest reasonably known to the
mediator. After disclosure, the mediator shall decline to
mediate unless all parties choose to retain the mediator.
If all parties agree to mediate after being informed of
conflicts, the mediator may proceed with the mediation
unless the conflict of interest casts serious doubts on the
integrity of the process, in which case the mediator shall
decline to proceed.
(b) The need to protect against conflicts of interest
also governs conduct that occurs during and after the
mediation. A mediator must avoid the appearance of conflict
of interest both during and after the mediation. Without
the consent of all parties, a mediator shall not
subsequently establish a professional relationship with one
of the parties in a related matter, or in an unrelated
matter under circumstances that would raise legitimate
questions about the integrity of the mediation process. A
mediator shall not establish a personal or intimate
relationship with any of the parties that would raise
legitimate questions about the integrity of the mediation
process.
(5) Competence. A mediator shall mediate only when the
mediator has the necessary qualifications to satisfy the
reasonable expectations of the parties. Mediators appointed or
recommended by the court are required to have the training and
experience specified by the court.
(6) Confidentiality. A mediator shall maintain the
reasonable expectations of the parties with regard to
confidentiality. Any information relating to a mediation
obtained by the mediator, whether such communication or
materials are oral or written, is privileged and confidential
and shall not be publicly disclosed without the written consent
of all parties. The mediator, the parties, and their counsel
each has a qualified privilege during and after these
proceedings to refuse to disclose and to prevent the mediator
from disclosing materials and communications made during the
mediation proceeding, whether or not the dispute was
successfully resolved, except for the following:
(a) public information or information available
through other legitimate sources;
(b) information concerning any conduct of the
mediator alleged to constitute a violation of these
standards, or the conduct of any counsel alleged to
constitute a violation of the Rules of Professional
Conduct, which may be reported to the appropriate
disciplinary body;
(c) a report by the mediator to the court limited to
identifying who participated in the ADR process, whether
settlement was reached, and whether further ADR proceedings
are contemplated; and
(d) data for use by court personnel reasonably
required to administer and evaluate the dispute
resolution program.
(7) Quality of the Process. A mediator shall conduct the
mediation fairly and diligently. A mediator shall work to
ensure a quality process and to encourage mutual respect among
the parties. A quality process requires a commitment by the
mediator to diligence and procedural fairness. There should be
adequate opportunity for each party in the mediation to
participate in the discussions. The parties decide when and
under what conditions they will reach an agreement or terminate
a mediation.
(8) Advertising and Solicitation. A mediator shall be
truthful in advertising and solicitation for mediation.
Advertising or any other communication with the public
concerning services offered or regarding the education training
and expertise of the mediator shall be truthful. Mediators
shall refrain from promises and guarantees of results.
(9) Fees. A mediator shall fully disclose and explain the
basis of compensation, fees, and charges to the parties. The
parties should be provided sufficient information about fees at
the outset of a mediation to determine if they wish to retain
the services of a mediator or to object to mediation. Any fees
charged by a mediator shall be reasonable, considering, among
other things, the mediation services, the type and complexity of
the matter, the expertise of the mediator, the time required,
and the rates customary to the community. The mediator's fee
arrangement shall be reduced to writing before proceeding with
the mediation.
(10) Obligations to the Mediation Process. Mediators have
a duty to improve the practice of mediation by helping educate
the public about mediation, making mediation accessible to those
who would like to use it, correcting abuses, and improving their
professional skills and abilities.
(G) Standards of Conduct for Other ADR Providers. The State
Court Administrative Office may adopt Standards of Conduct for ADR
providers not serving as mediators.
SUBCHAPTER 3.200 DOMESTIC RELATIONS ACTIONS
MCR 3.216 DOMESTIC RELATIONS MEDIATION
[Staff comment: this rule is completely rewritten]
(A) Definitions, Scope and Applicability of Rule.
(1) Mediation is a nonbinding process in which a neutral
third party facilitates communication between parties to promote
communication and settlement. The process is referred to as
evaluative mediation if the mediator is asked to submit a
written recommendation for settlement of any issues that remain
unresolved at the conclusion of a mediation proceeding. Except
for subsections (H) and (I), which relate exclusively to
evaluative mediation, the use of the term "mediation" includes
both processes.
(2) A court may submit to mediation any contested issue in
a domestic relations case as defined in the Friend of the Court
act (MCL 552.502[g]; MSA 25.176[2][g]), including post judgment
matters.
(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) Referral to Mediation. On written stipulation of the
parties, on written motion of a party, or on the court's initiative,
contested issues in a domestic relations case may be referred to
mediation under this rule by written order.
(C) 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
submitted to mediation.
(3) Cases may be exempted from mediation on the basis
of the following:
(a) child abuse or neglect;
(b) domestic abuse, unless attorneys are present;
(c) inability of one or both parties to negotiate for
themselves at the mediation, unless attorneys are present;
(d) reason to believe that one or both parties'
health or safety would be endangered by mediation; or
(e) for other good cause shown.
(D) Selection of Mediator.
(1) Domestic relations mediation will be conducted by a
mediator selected as provided in this subrule.
(2) 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 (E). 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 a preference of mediation processes:
mediation or evaluative mediation. If the parties have not
stipulated to a mediator, the judge may recommend, but not
appoint one. If the court's recommendation is not accepted by
both parties, a mediator will be selected from a list of
qualified mediators maintained by the ADR clerk. From the list
of qualified mediators the ADR clerk shall, on a random or
rotational basis, assign a mediator to the case offering the
process selected by the parties. The ADR clerk shall at least
annually update the list of qualified mediators and make
available the approved list of mediators to the public. The
parties shall advise the mediator before the commencement of the
mediation their preference regarding mediation or evaluative
mediation. If the parties do not agree on the type of mediation
process, the mediator will select the type of mediation.
(E) Lists of Mediators.
(1) A person eligible to serve as a mediator may apply to
the ADR clerk to be placed on the list of mediators.
Application forms shall be available in the office of the ADR
clerk. A mediator shall designate on the form the ADR
process(es) offered: mediation, and/or evaluative mediation.
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. The form
shall include a certification that the mediator meets the
requirements for service under this court rule.
(2) To be eligible to serve as a domestic relations
mediator under this court rule, a person must meet the
qualifications provided by this subrule.
(a) The applicant must have a juris doctor degree or
be a licensed attorney; be a licensed or limited licensed
psychologist; be a licensed professional counselor; have a
masters degree in counseling, social work, or marriage and
family counseling; have a graduate degree in a behavioral
science; or have 5 years experience in family counseling.
(b) The applicant must demonstrate completion of the
minimum training program approved by the State Court
Administrator that contains the following components, of
which at least 30 percent involve the practice of mediation
skills, including:
(i) experience of divorce for adults and
children;
(ii) family law and family economics;
(iii)mediation, negotiation, and conflict
management theory and skills;
(iv) information-gathering skills and knowledge;
(v) relationship skills and knowledge;
(vi) communication skills and knowledge;
(vii)problem-solving skills and knowledge;
(viii) ethical decision making and values skills
and knowledge;
(ix) professional skills and knowledge; and
(x) domestic violence
(3) Approved mediators are required to obtain 8 hours of
advanced mediation training during each 2-year period.
(F) Review of Applications.
(1) The ADR clerk shall review applications at least
annually, or more frequently, if appropriate, and compile a list
of qualified mediators. Persons meeting the qualifications
specified in this rule shall be placed on the list of approved
mediators. Selections shall be made without regard to race,
ethnic origin, or gender. Applications of approved mediators
shall be available to the public in the office of the ADR clerk.
(2) Applicants who are not placed on the mediator list
shall be notified of that decision and the reasons for it.
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.
(3) The ADR clerk shall remove from the list any mediators
who have made themselves consistently unavailable to serve as a
mediator, or for other just cause. Applicants who are not
placed on the mediator list shall be notified of that decision.
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) Mediation Procedure.
(1) A letter may be sent from the presiding judge of the
family division to the parties, explaining mediation in the
family division and enclosing a copy of the list of
court-approved mediators.
(2) A matter may be ordered to mediation as soon as
reasonably practical. The mediator must schedule a mediation
session within a reasonable time at a location accessible by the
parties.
(3) A mediator may require that no later than 3 business
days before the mediation session, each party submit to the
mediator, and serve on opposing counsel, 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 (if
relevant);
(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.
(4) The parties must attend the mediation session in
person.
(5) 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.
(6) 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, or the
parties agree to resume mediation at a subsequent date.
(7) Statements made during the ADR process, including
statements made in briefs or other written submissions, may not
be used in any other proceedings, including trial, unless the
statement was quoting admissible evidence.
(8) 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.
(9) In the evaluative mediation process, if a settlement
is not reached during mediation, the mediator, within a
reasonable period after the conclusion of mediation, at the
request of either party, 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.
(H) Acceptance or Rejection of Mediator's Report and
Recommendation.
(1) In the evaluative mediation process, if both parties
accept the mediator's recommendation in full, the attorneys
shall proceed to have a judgment entered in conformity with the
recommendation.
(2) 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, the case shall
proceed to trial.
(3) There will be no 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.
(I) Court Consideration of Mediation Report and Recommendation.
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 to
pay the mediator's fee no later than:
(a) 45 days after the mediation process is concluded
or the service of the mediator's report and recommendation
under subrule (G)(9), 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.
SUBCHAPTER 5.400 [PROBATE COURT] PRETRIAL PROCEDURES
Rule 5.403 Mediation
The court may submit to mediation, case evaluation, or
other alternative dispute resolution process one or more
requests for relief in any contested proceeding. [Procedures
of MCR 2.403 shall apply to the extent feasible, except]
In case evaluations conducted pursuant to MCR 2.403,
sanctions must not be awarded unless the subject matter of the
[mediation] case evaluation involves money damages
or division of property.
STAFF COMMENT: The Michigan Supreme Court convened the Michigan
Supreme Court Dispute Resolution Task Force in early 1998 to provide
recommendations for new and amended court rules, guidelines,
standards, and proposed statutory amendments that would facilitate
the integration of dispute resolution processes in the trial courts.
The task force conveyed its report to the Michigan Supreme Court in
January, 1999. Copies of the task force's report may be obtained
from the State Court Administrative Office, P. O. Box 30048, Lansing,
MI 48909. In this order, the Supreme Court is addressing only
the rule changes proposed by the task force.
The staff comment is published only for the benefit of the bench and
bar and is not an authoritative construction by the Court.
A copy of this order will be given to the secretary of the State Bar
and to the State Court Administrator so that they can make the
notifications specified in MCR 1.201. Comments on this proposal may
be sent to the Supreme Court Clerk within 60 days after it is
published in the Michigan Bar Journal. When submitting a comment,
please refer to our file number 99-02.