Getting divorced can be a stressful process. A court proceeding to dissolve a marriage moves along like any other lawsuit where, if the parties are unable to agree and settle the issues, a trial will take place and a judge will render a verdict deciding all of the issues in the case. The trial court will decide how the marital property is divided, who gets custody of the children, and how much alimony and spousal support will be paid. This is a lot of information to leave up to a judge who doesn’t know anything about the family outside of a few days of trial testimony. The likely result is that either or both parties will be upset about the outcome.
To avoid the expense and anxiety related to a lengthy court battle, spouses may choose the mediation process instead to try to reach a cooperative agreement to settle the case. “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.” MCR 2.411(A)(2). The mediator is not a decision-maker and has no authority to decide the issues for the parties (unlike a judge or an arbitrator), but instead facilitates discussions between the parties to try and guide them towards an agreement. Mediators are trained to keep discussions civil, act as an intermediary between the parties with various offers in resolution, and suggest options or new ideas that can help resolve issues. Over 95% of divorce cases resolve without the need of a trial, and mediations contribute to that high settlement rate.
WHO IS THE MEDIATOR?
The court may either appoint a mediator to the case or let the parties agree to hire a private mediator of their choosing. Some mediators involved in high-asset divorces are lawyers or retired judges who apply their extensive skills and experience in family court to resolve cases. There are also alternate dispute resolution services and non-profit entities that provide mediation services for little to no cost and comprise of volunteers. Some judges also utlitize a network of mediators that they refer cases to, and some courts even keep mediators on as employees (e.g. within the Friend of the Court office).
WHO PAYS FOR MEDIATION?
Some mediators work as volunteers or employees of the circuit court and do not charge fees. However, private mediators who are lawyers or retired judges often charge an hourly rate similar to the fees they charge to provide legal services in law practice. “A mediator is entitled to reasonable compensation commensurate with the mediator’s experience and usual charges for services performed.” MCR 2.411(D)(1).
Generally, “[t]he 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.” MCR 2.411(D)(2). In some divorces where one spouse controls a disproportionate amount of marital assets, that spouse may be ordered to pay for most or all of the mediators’ fees. “The mediator’s fee shall be paid no later than 42 days after the mediation process is concluded, or the entry of judgment, or the dismissal of the action, whichever occurs first.” Id.
“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.” MCR 2.411(D)(4). “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.” MCR 2.411(D)(5).
The truth and the reality is that mediation is far less expensive than going to trial. The cost of sharing the mediator’s fee is way cheaper than the attorney’s fees, court costs, witness fees and other expenses associated with litigation. Even the most contentious cases would benefit from the parties at least attempting mediation to try settling the case and saving thousands of dollars in the process.
HOW IS MEDIATION CONDUCTED?
MCR 2.411(C)(2) provides “[t]he 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.”
Mediations can occur in person at an office, conference room or even at the courthouse. Since the COVID-19 pandemic, it has been very common for mediations to occur virtually through Zoom, Microsoft Teams or Google meet with parties, attorneys and the mediator appearing on computer screens from their home or office. Some mediators will bring the parties into the same room and try to hash it out. Other mediators will employ “shuttle diplomacy” and place the parties in different rooms to go back and forth with offers in resolution. The particular strategy utilized depends on the mediator’s style, the level of hostility between the parties and the complexity of the issues involved.
Many mediations can be completed in less than a day. This will often lead to a resolution of the divorce matter much quicker than waiting several months to go to trial. A swift completion of the case will often reduce the stress and anxiety involved for both sides.
Mediations are conducted informally and formal court procedures do not apply. Parties and their attorneys are permitted to speak freely. The mediator will work to ensure that everyone’s voice and viewpoint is heard and listened to. This relaxed environment helps contribute to a civil resolution of the issues in the case.
CAN WHAT I SAY IN MEDIATION BE USED AGAINST ME LATER IN COURT?
Any “mediation communications”, including “statements whether oral or in a record, verbal or nonverbal, that occur during the mediation process or are made for purposes of retaining a mediator or for considering, initiating, preparing for, conducting, participating in, continuing, adjourning, concluding, or reconvening a mediation” are completely confidential. MCR 2.412(B)(2). “They are not subject to discovery, are not admissible in a proceeding, and may not be disclosed to anyone other than mediation participants…”. MCR 2.412(C). This applies to anyone present at mediation including a party with settlement authority, any nonparty, an attorney for a party, or the mediator who participates in or is present at a mediation. MCR 2.412(B)(4). The Michigan Rules of Evidence prohibit the use of mediation communications as evidence in court. “Evidence of furnishing or offering or promising to furnish, or accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount.” MRE 408. If a party believed that statements said in the course of settlement negotiations can be used against them, then no one would want to participate in mediation.
However, mediation communications may be disclosed under the following circumstances:
- “All mediation parties agree in writing to disclosure.” MCR 2.412(D)(1).
- “A statute or court rule requires disclosure.” MCR 2.412(D)(2).
- “The mediation communication is in the mediator’s report” as allowed or required by court rule. MCR 2.412(D)(3).
- “The disclosure is necessary for a court to resolve disputes about the mediator’s fee.” MCR 2.412(D)(4).
- “The disclosure is necessary for a court to consider issues about a party’s failure to attend [mediation].” MCR 2.412(D)(5).
- “The disclosure is made during a mediation session that is open or is required by law to be open to the public.” MCR 2.412(D)(6).
- “Court personnel reasonably require disclosure to administer and evaluate the mediation program.” MCR 2.412(D)(7).
- The mediation communication is:
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- “A threat to inflict bodily injury or commit a crime.” (MCR 2.412(D)(8)(a)) OR
- “A statement of a plan to inflict bodily injury or commit a crime.” (MCR 2.412(D)(8)(b)) OR
- “Is used to plan a crime, attempt to commit or commit a crime, or conceal a crime.” (MCR 2.412(D)(8)(c)).
- The disclosure:
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- “Involves a claim of abuse or neglect of a child, a protected individual, or a vulnerable adult.” (MCR 2.412(D)(9)(a)) AND
- Is included in a report about such a claim or sought or offered to prove or disprove such a claim; AND Is made to a governmental agency or law enforcement official responsible for the protection against such conduct, or is made in any subsequent or related proceeding based on the disclosure.” (MCR 2.412(D)(9)(b)).
- “The disclosure is included in a report of professional misconduct filed against a mediation participant or is sought or offered to prove or disprove misconduct allegations in the attorney disciplinary process.” MCR 2.412(D)(10).
- “The mediation communication occurs in a case out of which a claim of malpractice arises and the disclosure is sought or offered to prove or disprove a claim of malpractice against a mediation participant.” MCR 2.412(D)(11).
- “The disclosure is in a proceeding to enforce, rescind, reform, or avoid liability on a document signed by the mediation parties or acknowledged by the parties on an audio or video recording that arose out of mediation, if the court finds, after an in camera hearing, that the party seeking discovery or the proponent of the evidence has shown that the evidence is not otherwise available, and that the need for the evidence substantially outweighs the interest in protecting confidentiality.” MCR 2.412(D)(12).
“If a mediation communication may be disclosed under [the court rules], only that portion of the communication necessary for the application of the exception may be disclosed.” MCR 2.412(E)(1). “Evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its disclosure or use in a mediation.” MCR 2.412(E)(3).
WHAT HAPPENS IF AN AGREEMENT IS REACHED?
If the parties reach an agreement, then the terms of settlement are written into a consent judgment of divorce and presented to the court for signature. The party who filed will need to appear on the record to put on proofs that jurisdiction and venue with the court are proper and the legal requirements of divorce are met. More often, both parties will appear before the court and indicate they have reached an agreement and wish the court to codify the terms of settlement into a final judgment of divorce. Once the judge signs off on the written consent judgment, the divorce is finalized.
WHAT HAPPENS IF AN AGREEMENT IS NOT REACHED?
If the parties do not reach an agreement, then the case will proceed to trial where the judge will decide the issues. The parties are not required to settle the case at mediation. Like any civil case, both sides need to consider if the best possible outcome at trial is better than any agreement that can be negotiated.
IS MEDIATION APPROPRIATE FOR ALL DIVORCE CASES?
While the vast majority of cases can be settled through the mediation process, there are circumstances where it may not be appropriate. For example, if there was domestic violence in the marriage, then mediation may not be effective due to the power imbalance between the spouse and the control one may have over the other. Also, mediation does not work in cases where one spouse is hiding assets from the other. Other methods of alternative dispute resolution may be more appropriate.
THE BOTTOM LINE
Mediation is usually a good idea in divorce proceedings, but whether it is right for your situation should be discussed with skilled legal counsel. If you or a loved one has questions about divorce in Michigan or need legal representation, then do not hesitate to contact the experienced family law attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
