By Robert E. L. Wright, Mediator & Arbitrator…
First Appearing in the Oakland County Legal News May 2022.
Allowing parties to make their own choices and come to their own decisions regarding the outcome of a dispute is a fundamental tenet of court-annexed mediation. It is the first standard in Michigan’s Standards of Conduct for Mediators (“Standards”) which attests to its importance in mediation. Two underlying principles of self-determination are that barring obstacles, the parties themselves can decide which outcomes will work best for them and people who develop their own agreements are more likely to honor them.
A 1995 study by Michigan’s State Court Administrative Office compared the rates of party compliance with judges’ small claims decisions to compliance with mediated settlement agreements in small claims cases. Where judgments only had a 50% compliance rate, compliance with agreements exceeded 90%. But what are some obstacles to self-determination?
OBSTACLES TO SELF-DETERMINATION
While there are many potential obstacles, e.g., age, substance abuse, physical, mental, and emotional disabilities, this article focuses on non-disclosure of a mediator’s prior or existing relationships with mediation participants and the mental and emotional capacity of the parties.
The first obstacle is non-disclosure of close relationships by mediators. How can parties exercise self-determination in deciding whether to hire a particular mediator if that mediator fails to disclose a relationship which could cause a party to question the mediator’s neutrality?
In Hartman v Hartman, a divorce case involving both mediation and arbitration, so-called “med/arb,” because the mediator also served as an arbitrator to decide some issues on which the parties could not agree. She allegedly failed to disclose her friendship with defense counsel at the outset of her engagement. When she later disclosed that she and her spouse would be spending a week at a Florida condo with defense counsel and his wife, there was much consternation on the part of the plaintiff and his counsel, which led to an appeal of the trial court’s decision upholding a settlement agreement reached in the med-arb process. While the appellate court upheld the lower court’s enforcement of the med-arb outcome, there was great expense to both parties litigating the enforceability of the divorce judgment and continued dissatisfaction with the med/arb process and the professionals involved in it. The obvious solution to this obstacle is for all mediators to simply disclose their relationships to the parties and for parties’ counsel to inquire about such relationships before engaging a mediator’s services.
PROPOSAL TO MANDATE MEDIATOR DISCLOSURES
The ADR Section of the State Bar of Michigan recently proposed amendments to the Michigan Standards of Conduct for Mediators developed by the State Court Administrative Office to help mediators identify
relationships and matters which must, should or need not be disclosed.i Essentially, these amendments require mediators to inventory their relationships with all participants in a mediation to determine whether there is anything which could create doubt on the part of any party as to the mediator’s ability to serve in an impartial manner and avoid even the appearance of partiality.
Some specific examples of relationships which must be considered under the proposed amendments are set forth in comments to the amendments. They include parties’ relationships with the mediator’s family members. Those areas are: Financial Dealings or Relationships; Professional Dealings or Relationships; and Personal Dealings or Relationships. Under the broad heading of the mediator’s personal relationships are:
• Acquaintanceships: “may not need” to be disclosed;
• Friendships: “most often should be” disclosed; and
• Close Personal Relationships: “must be” disclosed.
Each category has explanations as to their meanings, but the safest course for mediators is to just disclose every potential for parties to perceive a bias on the part of the mediator and to ask for the names of everyone who may play a part in the mediation process.
The best practice for advocates in mediation is to disclose the identities of all interested entities and witnesses and to inquire of the mediator about relationships with any of those entities at their first opportunity to do so. It serves no one’s interests to be surprised by the first disclosure of a relationship coming during the mediation, nor does it help the reputation for mediation as an alternative form of dispute resolution.
PARTY CAPACITY TO MEDIATE
Another obstacle to self-determination concerns the capacity of the parties to mediate. Can a party freely agree to an outcome if they only do so out of fear of financial, physical, or emotional harm? Can they effectively choose among diverse resolution options if they are subject to these fears? Often, they cannot.
What can mediators do to avoid or overcome this potential obstacle?
DISCOVERING OBSTACLES TO SELF-DETERMINATION
Lack of party capacity for self-determination is a potential obstacle in all types of mediations. Mediators cannot attempt to overcome this obstacle unless they are aware it exists. Interviewing the parties and their attorneys before the actual mediation session begins is a vital step in assessing capacity for self-determination.
Most attorneys having participated in a mediation are familiar with the “pre-mediation conference” conducted by mediators. This is a first step toward discovering any obvious issues affecting the parties or their representatives which could impact their capacity for self-determination. But such a conference alone is often insufficient where there is a troubled relationship between participants or an organic problem with one of the parties.
MANDATORY PARTY INTERVIEWS IN DOMESTIC RELATIONS ACTIONS
Michigan law now requires personal interviews of each party by the mediator in court-annexed family disputes falling under the heading of “domestic relations actions” (primarily, divorce, custody, and support matters). Michigan’s domestic relations mediators must “make reasonable inquiry as to whether either party has a history of a coercive or violent relationship with the other party.” Such inquiry may include “the use of the domestic violence screening protocol for mediation” developed by the State Court Administrative Office. MCL 600.1035(2) and MCR 3.216(H)(2).
Both the statute and court further require mediators make reasonable efforts throughout the mediation process “to screen for the presence of coercion or violence that would make mediation physically or emotionally unsafe for any participant, or that would impede the achievement of a voluntary and safe resolution of issues.” MCL 600.1035(3) and MCR 3.216(H)(3).
MEDIATOR STANDARDS OF CONDUCT
The Michigan Standards of Conduct for Mediators also support mediator inquiries concerning the ability of participants to exercise self-determination in ALL cases, not just domestic relations disputes.
Standard I.A., Self-Determination provides:
A mediator shall conduct mediation based on the principle of party self-determination. Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome, including mediator selection, process design, and participating in or terminating the process.
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A mediator shall continuously assess the capacity of the parties to mediate. A mediator shall make appropriate modifications to the process if there is concern about a party’s ability to make voluntary and uncoerced decisions. A mediator shall terminate the mediation process when a mediator believes a party cannot effectively participate.
B. A mediator’s commitment is to the parties and the mediation process. A mediator shall not undermine party self-determination for reasons such as obtaining higher settlement rates, ego satisfaction, increased fees, or outside pressures from court personnel, program administrators, provider organizations, or the media.
Standard VI(A), Safety provides:
… reasonable efforts shall be made throughout the mediation process to screen for the presence of an impediment that would make mediation physically or emotionally unsafe for any participant, or that would impede the achievement of a voluntary and safe resolution of issues.
(1) In general, “reasonable efforts” may include meeting separately with the parties prior to a joint session or administering screening tools.
Standard VII(A), Quality of the Process, states:
Process: A mediator shall conduct mediation in accordance with these Standards and in a manner that promotes diligence, timeliness, safety, presence of the appropriate participants, party participation, procedural fairness, party competency, and mutual respect among all participants.
Since these three standards, I-Self-Determination; VI-Safety and VII-Quality of the Process apply to ALL “cases managed under the Michigan Court Rules,” something beyond a mere telephone conference with counsel to schedule the mediation meeting may be required of all mediators.
PRACTICE TIP: A best practice for mediators and counsel in ALL disputes is to allow and encourage mediators to interview the parties to determine whether there are any obstacles to self-determination which could make mediation inappropriate for them and explore any accommodations which could be made to make mediation appropriate.
OTHER TYPES OF DISPUTES
Some other types of disputes which may have hidden obstacles to self-determination include:
- Probate disputes involving guardianship, conservatorships, estate distributions
- Partnership dissolutions
- Shareholder oppression claims
- Employment disputes (especially those involving discrimination and sexual harassment claims)
- Civil rights claims, such as excessive force claims against peace officers
- Even garden variety contract disputes deserve at least a cursory inspection for obstacles to self-determination
Some best practices advocates for parties in mediation can employ to ensure clients participate in a quality mediation process are:
As of May 1 2022, the State Court Administrative Office has not acted upon the proposed amendments.
- Conduct your own screening of your clients inquiring about the impediments to self-determination listed above to discover any obstacles to self-determination
- Ask your client about their knowledge of the other side to determine if there are any obstacles to bring to the mediator’s attention
- If you can do so without violating the attorney-client privilege, discuss any obstacles with the mediator privately ahead of the joint meeting and brainstorm some possible solutions
While it is not possible or appropriate for mediators to guarantee equality of bargaining power at the negotiation table, screening interviews to ensure parties have the ability to make “free and informed choices as to process and outcome” is a critical piece of the mediation process and required by the Standards. Mediators must take steps to ensure parties are not entering into a process which increases the risk of physical, mental or emotional harm to a participant. Best practices may require their advocate insists on it from their mediator.
By following the recommendations above, mediators and advocates can help ensure a mediation process which supports self-determination of the parties and helps eliminate protracted and expensive litigation over the mediation process and the enforceability of agreements reached at the negotiating table.
Professional Resolution Experts of Michigan, LLC (PREMi) is an association of legal professionals with numerous years of experience in dispute resolution and a large breadth of subject matter knowledge. PREMi’s attorneys work with parties in conflict across Michigan and around the country, utilizing creative approaches and processes to achieve meaningful results. More information about PREMi can be found on its website: www.premiadr.com.
* Member Emeritus