by Philip Schaedler

Introduction

Alternative Dispute Resolution (ADR) has gained significant importance in the realm of domestic relations cases, providing a more collaborative, compassionate, and efficient way to resolve conflicts compared to traditional litigation. Michigan, like many other states, recognizes the value of ADR in domestic relations cases and offers various methods for parties to settle their disputes amicably. This article describes the differences in three ADR options employed in the resolution of domestic relations cases in Michigan.

We will first focus on mediation and collaborative law.  Mediation is one of the most used ADR techniques in Michigan’s family law cases. This article will discuss the process, benefits, and limitations of mediation, as well as its regulatory framework within the state.

Mediation

Mediation is a voluntary and non-binding process that involves the assistance of a neutral third party, the mediator, to facilitate communication and negotiations between disputing parties. It is widely used in domestic relations cases in Michigan, such as divorce, child custody, spousal support, and property division disputes. Mediation can be court-ordered or initiated by the parties themselves.

1. Mediation in Michigan Domestic Relations Cases

Process of Mediation

In Michigan, the mediation process typically follows these steps:

1. Initial Meeting: Parties meet with the mediator to establish ground rules, clarify the process, and express their goals and concerns.
2. Information Gathering: Each party provides relevant information, such as financial records or custody arrangements, to the mediator.
3. Joint Sessions: Parties come together in the presence of the mediator to discuss their issues, explore options, and negotiate settlements.
4. Separate Sessions: If needed, the mediator may hold private caucus meetings with each party to discuss sensitive issues or facilitate compromise.
5. Agreement: If an agreement is reached, it is drafted, reviewed, and signed by the parties.
6. Submission to Court: If the parties are represented by attorneys, the agreement is submitted to the court for approval and becomes a legally binding court order upon approval.

Benefits of Mediation in Michigan

Mediation offers several advantages for domestic relations cases in Michigan:

1. Cost-Effective: Mediation is often more affordable than litigation, reducing legal fees and court costs.
2. Faster Resolution: Mediation typically proceeds more quickly than court proceedings, allowing parties to reach a resolution sooner.
3. Control Over the Outcome: Parties have more control and autonomy in crafting their own solutions rather than having decisions imposed by a judge.
4. Preservation of Relationships: Mediation are less adversarial, helping to promote productive communication and maintain better post-divorce relationships, which is crucial when children are involved.
5. Confidentiality: Mediation proceedings are confidential, which protects privacy; statements made during the process are generally not admissible in court.
6. Flexibility: Mediation can address specific issues, making it a versatile process for a variety of domestic relations disputes.  Even if the case does not fully resolve in mediation, the parties can reach partial agreement on significant issues.

Limitations of Mediation in Michigan

Despite its many benefits, mediation does have some limitations in the context of domestic relations cases in Michigan:

1. Voluntary Participation: Mediation requires the willingness of both parties to participate. If one party is unwilling, mediation generally is not a viable option.
2. No Guarantee of Agreement: Mediation does not guarantee that an agreement will be reached, and parties may still end up in court if they cannot resolve their issues through mediation.
3. Lack of Legal Advice: Mediators do not provide legal advice, so it is often recommended that parties consult with attorneys before, during and after the mediation process.
4. Imbalance of Power: In some cases, there may be a significant power imbalance between the parties, making it challenging to achieve a fair agreement.

Regulatory Framework in Michigan

Mediation in Michigan is subject to regulation and oversight by the courts. Court-connected mediation programs are common, and some jurisdictions mandate parties to attend mediation sessions before pursuing litigation. These programs ensure that the mediators are qualified and maintain high ethical standards.

Additionally, Michigan has specific rules regarding child custody mediation, which is often a critical aspect of domestic relations cases. Custody mediators must meet certain qualifications and adhere to a code of ethics.

The Michigan regulatory framework applicable to domestic relations mediation can be found in MCL 552.513; MCL 600.1035; mcr 2.411 and MCR 3.216. The Michigan Supreme Court through the Office of Dispute Resolution of the State Court Administrator’s Office has published Michigan’s Mediator Standards of Conduct

Conclusion

Mediation plays a vital role in the resolution of domestic relations cases in Michigan. It offers a more cost-effective, flexible, and less adversarial alternative to litigation. While it has its limitations, it remains a valuable tool for couples seeking an amicable resolution to their disputes. In Part 2 of this series, we will explore another ADR technique, arbitration, and how it is employed in the context of domestic relations cases in Michigan.

Collaborative Law

Collaborative law is an innovative and interdisciplinary approach to resolving domestic relations cases in Michigan. Here we will explore this alternative dispute resolution (ADR) technique, outlining the process, advantages, disadvantages, and the regulatory framework that governs collaborative law in the state.

2. Collaborative Law in Michigan Domestic Relations Cases

Collaborative law, also known as collaborative divorce, is a non-adversarial ADR process in which parties and their attorneys work together to reach mutually acceptable solutions. This method is particularly suited for divorce, child custody, and property division cases.

Process of Collaborative Law

The collaborative law process in Michigan typically involves the following steps:

1. Agreement to Collaborate: Both parties and their respective attorneys must sign a participation agreement committing to the collaborative process and agreeing not to pursue litigation while it is ongoing.
2. Team Approach: The collaborative team may include attorneys, financial professionals, and mental health experts, depending on the specific needs of the case.
3. Meetings and Negotiation: The parties and their collaborative team meet to discuss their concerns, interests, and objectives. They work together to negotiate a fair and comprehensive resolution.
4. Disclosure and Transparency: Parties are encouraged to be open and transparent, sharing all necessary financial and other information to facilitate negotiations.
5. Resolution: Once all issues are addressed and an agreement is reached, the parties can submit their settlement to the court for approval, making it a legally binding court order.
6. Termination of Collaboration: If the collaborative process breaks down, and parties decide to pursue litigation, they must retain new attorneys.

Benefits of Collaborative Law in Michigan

Collaborative law offers numerous advantages for domestic relations cases in Michigan:

1. Empowerment: Parties have control over the process and actively participate in shaping their own agreements with guidance from experienced family law attorneys.
2. Privacy: Collaborative proceedings are private and confidential, ensuring that personal matters remain out of the public eye.
3. Reduction of Conflict: The non-adversarial nature of collaborative law often leads to reduced conflict and better post-divorce relationships, which is especially important when children are involved.
4. Customization: The collaborative process allows for creative and customized solutions tailored to the unique circumstances of each case.
5. Efficiency: Collaborative law can lead to faster and more efficient resolutions compared to court litigation.

Limitations of Collaborative Law in Michigan

Collaborative law, like other ADR options, has its limitations in the context of Michigan domestic relations cases:

1. Mutual Agreement: The process requires the voluntary participation and mutual agreement of both parties. If one party is unwilling or uncooperative, collaboration may not be an option.
2. Attorney Withdrawal: If the collaborative process fails, and the case proceeds to litigation, the attorneys who participated in the collaboration must withdraw from the case. New attorneys will need to be retained, which can increase costs.
3. Not Suitable for All Cases: Collaborative law is not always suitable for high-conflict or extremely complex cases where a judge’s intervention may be necessary.

Regulatory Framework in Michigan

Michigan has established rules and guidelines for collaborative law, primarily through court rules and local practice standards. It is important for attorneys and parties involved in collaborative law cases to be familiar with these rules and ensure that they comply with the requirements.

While collaborative law offers significant flexibility, parties must still seek court approval for their final agreement to ensure it aligns with the law and the best interests of any children involved.

The Michigan regulatory framework applicable to Collaborative law is found in MCL 691.1332 the Michigan Uniform Collaborative Law Act and MRC 3.222 and MCR 3.223 (this rule does not apply to collaborative divorce perse but governs summary proceedings for entry of consent judgments or orders which in many cases is an integral part of a collaborative approach to domestic relations disputes. An excellent primer on collaborative process and consent judgments can be found in the April 5, 2021, issue of Connections the newsletter of the Michigan State Court Administrative Office

Conclusion

Collaborative law is a forward-thinking and cooperative approach to resolving domestic relations cases in Michigan. It empowers parties to work together, encourages open communication, and provides an efficient and private way to address issues arising from divorce, child custody, and property division. While it may not be suitable for every case, its benefits, particularly in terms of preserving relationships and promoting creative solutions, make it a valuable ADR technique in Michigan’s family law landscape.

Arbitration

In the realm of domestic relations cases in Michigan, arbitration serves as an alternative dispute resolution (ADR) option with distinctive features compared to mediation and litigation. Part 2 of this article delves into the process, advantages, disadvantages, and regulatory framework of arbitration in Michigan’s domestic relations cases.

3. Arbitration in Michigan Domestic Relations Cases

Arbitration is a formal and binding ADR process where the disputing parties present their case to an impartial third party, the arbitrator. The arbitrator then issues a decision, which is typically final and enforceable. This technique is often used in family law cases, including divorce, property division, and child custody disputes.

Process of Arbitration

Arbitration in Michigan generally follows these key steps:

1. Agreement to Arbitrate: Parties must agree to submit their dispute to arbitration. This agreement may be voluntary, part of a prenuptial agreement, a post-divorce settlement agreement, or a court order.
2. Selection of Arbitrator: Parties can either agree on an arbitrator or rely on an established arbitration organization to appoint one.
3. Preliminary Hearings: The arbitrator may hold preliminary hearings to establish ground rules, define the issues to be arbitrated, and set timelines.
4. Arbitration Proceedings: Each party presents their case, including evidence and witnesses, before the arbitrator. The arbitrator may allow for cross-examination and legal representation.
5. Decision: The arbitrator issues a final, binding decision, often referred to as an award.
6. Enforcement: The arbitration award is enforceable through the courts and is treated as a legally binding judgment.

Benefits of Arbitration in Michigan

Arbitration offers several advantages for domestic relations cases in Michigan:

1. Speed and Efficiency: Arbitration proceedings are generally faster than court litigation, providing quicker resolutions.
2. Customization: Parties can choose their arbitrator and establish their own rules and procedures, allowing for a more tailored process. They may agree to limit discovery, present a limited number of witnesses, allow experts to hear other experts’ testimony, etc.
3. Privacy: Arbitration proceedings are private and confidential, as opposed to court hearings that are generally open to the public.
4. Expertise: Parties can select an arbitrator with specific expertise in family law, ensuring a knowledgeable decision-maker.
5. Finality: Arbitration awards are typically final and less susceptible to lengthy appeals, reducing prolonged legal battles.

Limitations of Arbitration in Michigan

Despite its advantages, arbitration has its limitations when employed in Michigan’s domestic relations cases:

1. Costs: The expenses associated with arbitration, including arbitrator fees, can be substantial, especially if the process becomes protracted.  Parties must pay for an arbitrator, whereas judges are paid with public funds.
2. Finality: The finality of arbitration awards means there is limited room for correcting mistakes or addressing unforeseen issues.
3. Lack of Precedent: Arbitration awards do not create legal precedent, making them less predictable for future cases.
4. Potential for Unfairness: If one party is less financially or legally savvy, they may feel at a disadvantage in arbitration.

Regulatory Framework in Michigan

Michigan has comprehensive rules governing arbitration in domestic relations cases. The Michigan Court Rules outline the procedures for domestic relations arbitration and the appointment of arbitrators. Courts have the authority to confirm, vacate, or modify arbitration awards, which ensures that the process remains within the bounds of the law.

In custody cases, Michigan requires that arbitration be conducted by a licensed attorney, which sets a high standard for the qualifications of arbitrators. This helps to maintain the integrity and fairness of the process, particularly when the welfare of children is at stake.

Those considering the use of arbitration in the domestic relations context should be familiar with Michigan’s Uniform Arbitration Act, MCL 691.1681 which addresses arbitration generally, Chapter 50B of the Revised Judicature Act, MCL 600.5070, which provides specific regulation of domestic relations arbitration; and MCR 3.602, Arbitration.

Conclusion

Arbitration presents a unique and formalized approach to resolving domestic relations cases in Michigan. It offers a balance between the informality of mediation and the structure of court litigation, making it a valuable option for parties who seek a swift, private, and customizable resolution. However, the associated costs and potential limitations should be carefully considered.

Phillip Schaedler began his legal career with the defense litigation law firm of Janes & Hall P.C. in Mt. Pleasant, Michigan, representing local health care facilities, physicians, and financial institutions.

In 1984, Phill began a 20-year career in the health care and insurance industry representing some of the nation’s leading community hospitals and health care systems as well as the world’s oldest and fourth largest property and casualty insurance company.  He has been a national leader in the area of health care risk management and alternative risk finance, and at the forefront of the adoption and application of alternative dispute resolution techniques in the health care industry.

Phill is a former board member and chair of the Family Mediation Council – Michigan, the State Bar of Michigan Alternative Dispute Resolution Council, and the State Bar of Michigan Character and Fitness Committee for District H, and the State Bar of Michigan’s Unauthorized Practice of Law Committee.  He is a member in good standing of the State Bar of Michigan, the American Bar Association, and the Federation of Defense and Corporate Counsel, and he is a member, fellow, and former board member of the American Society of Health Care Risk Management.  He is also a certified professional healthcare risk manager.

Phill’s practice in Adrian, Michigan, centers on alternative dispute resolution in both general civil and domestic relations cases. He is a trained practitioner in the areas of facilitative and evaluative mediation, arbitration and collaborative law.

Phill is certified as a trainer in general civil mediation, restorative conferencing, neglect and abuse mediation and circle keeping.