Most Michigan counties now refer divorce cases to facilitative mediation. This can be a highly effective process, especially if begun in the early stages of divorce, sometimes even prior to filing the complaint. Mediation is voluntary and requires that both parties meet with a neutral mediator to work cooperatively toward a mutually agreed settlement. In facilitative mediation, the most common type of alternative dispute resolution, the mediator does not act as a judge and does not render a decision or make any recommendation. Instead, the mediator’s job is to maintain complete neutrality while encouraging the parties to move toward a settlement rather than going to court.
While mediation is generally ordered by the court, in most counties it is voluntary. In other words, if you attend a mediation, even by court order, no one will force you to settle your case through the process. While mediation is generally effective, it does not resolve all cases.
Some disputes are not suitable for mediation. Where there has been domestic violence, one of the parties may be fearful of or intimidated by the other. Mediation may not work in these cases, as the process is premised on an equality of bargaining power and open, honest communication. While cases with domestic violence can be resolved through mediation, it often requires additional work. If the parties are not allowed in the same room because of a restraining order, the process is more cumbersome and time-consuming, but may still be worthwhile. The courts require the mediator to screen the case for domestic violence to determine if it is suitable for mediation. In most Michigan counties, if this domestic violence screening form reveals existence of domestic violence, threats or intimidation between the parties, the court must conduct a hearing regarding suitability for mediation.
It is often evident after one meeting with the parties whether the case is likely to be resolved at mediation. Though at the start of mediation few people feel confident that their case can be resolved without a trial, once they sit down at a table with a good mediator, they begin to realize they have the power to resolve their dispute.
One predictor of success at mediation is the relative positions of the parties as expressed at the initial meeting. If they see the dispute as an all-or-nothing proposition, mediation is less likely to succeed, as it is based on a spirit of compromise and requires each party to give a little ground and meet in the middle. If one party is dead set on adhering to unreasonable expectations mediation might not work. An example would be a custody case where one party feels the other parent should have no contact with the children. While this may be the outcome in the most extreme cases, as in situations of severe abuse or neglect, there will nearly always be some parenting time provided for both parents, as the law presumes that children have a right to a close relationship with both parents.
The most common type of alternative dispute resolution utilized in domestic cases is facilitative mediation, in which the mediator makes no recommendation and maintains complete neutrality. Read about the facilitative mediation process.
In some cases, if the parties desire more guidance from the mediator in settling their dispute, a variation of the process, known as evaluative mediation, may work. In this process, the mediator participates in discussion and negotiation just as he would in facilitative mediation. However, the mediator will then offer an opinion or recommended settlement to the parties. Unless agreed in advance, this is nothing more than a recommendation, based on what the mediator perceives is fair and equitable and in line with what a judge might do were the case to proceed to trial. The parties can either accept or reject the evaluation.
A third type of alternative dispute resolution is binding arbitration. Through this process, the parties seek an order from the court appointing an arbitrator in advance of the proceeding. This person can be appointed by the judge or chosen by the parties. Most divorce arbitrators are attorneys experienced in domestic relations law. The attorneys may submit briefs, and the arbitrator will listen to testimony and receive exhibits just as a judge would at trial. The arbitrator then issues an opinion and order that is adopted by the court and incorporated into the terms of a judgment of divorce. The rules for domestic relations arbitration are governed by Michigan statute and court rule, and the procedure is more formal than mediation. The arbitration statute requires that portions of the hearing concerning child support, custody or parenting time must be on the record before a court reporter. The arbitration statute also contains detailed procedures for enforcement of arbitration awards, the filing of judgments, objections to the arbitrator’s award, and other mandatory procedures. The arbitration rules can be found at Michigan Compiled Laws Sec. 600.570-582
If you are considering alternative dispute resolution as a means of resolving your divorce outside of court, I would be happy to explore with you which method would be best suited for your case. In my over 25 years of experience as a divorce lawyer and as a mediator in West Michigan, I have seen many divorce and custody cases successfully resolved through alternative dispute resolution. Call our Holland, Michigan office today to discuss your situation.
© 2019 Thomas C. Kates, Attorney and Mediator