Michigan Domestic Relations Court Rule
May 9, 2000
State of Michigan Supreme Court
99-02
Rule 3.216 Domestic Relations Mediation
(A) Scope and Applicability of Rule, Definitions.
(1) All domestic relations cases, as defined in MCL 552.502(h); MSA
25.176(2)(h), are subject to mediation under this rule, unless otherwise
provided by statute or court rule.
(2) Domestic relations mediation is a nonbinding process in which a neutral
third party facilitates communication between parties to promote settlement.
If the parties so request, and the mediator agrees to do so, the mediator may
provide a written recommendation for settlement of any issues that remain
unresolved at the conclusion of a mediation proceeding. This procedure, known
as evaluative mediation, is governed by subrule (I).
(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) Mediation Plan. Each trial court that submits domestic relations cases to mediation under this rule shall include in its alternative dispute
resolution plan adopted under MCR 2.410(B) provisions governing selection of
domestic relations mediators, and for providing parties with
information about mediation in the family division as soon as reasonably
practical.
(C) Referral to Mediation.
(1) On written stipulation of the parties, on written motion of a party, or on
the court's initiative, the court may submit to mediation by written order any
contested issue in a domestic relations case, including postjudgment matters.
(2) The court may not submit contested issues to evaluative mediation unless
all parties so request.
(3) Parties who are subject to a personal protection order or who are involved
in a child abuse and neglect proceeding may not be referred to mediation
without a hearing to determine whether mediation is appropriate.
(D) 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 mediated.
(3) Cases may be exempt from mediation on the basis of the following:
(a) child abuse or neglect;
(b) domestic abuse, unless attorneys for both parties will be present at the
mediation session;
(c) inability of one or both parties to negotiate for themselves at the
mediation, unless attorneys for both parties will be present at the mediation
session;
(d) reason to believe that one or both parties' health or safety would be
endangered by mediation; or
(e) for other good cause shown. |
(E) Selection of Mediator.
(1) Domestic relations mediation will be conducted by a mediator selected as
provided in this subrule.
(2) The 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 (G). 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 whether they prefer a mediator who is willing conduct evaluative
mediation. Failure to indicate a preference will be treated as not requesting
evaluative mediation.
(4) If the parties have not stipulated to a mediator, the judge may recommend,
but not appoint one. If the judge does not make a recommendation, or if the
recommendation is not accepted by the parties, the ADR clerk will assign a
mediator from the list of qualified mediators maintained under subrule (F).
The assignment shall be made on a rotational basis, except that if the parties
have requested evaluative mediation, only a mediator who is willing to provide
an evaluation may be assigned.
(5) The rule for disqualification of a mediator is the same as that provided
in MCR 2.003 for the disqualification of a judge. The mediator must promptly
disclose any potential basis for disqualification.
(F) List of Mediators.
(1) Application. An eligible person desiring to serve as a domestic relations
mediator may apply to the ADR clerk to be placed on the court's list of
mediators. Application forms shall be available in the office of the ADR clerk.
(a) The form shall include a certification that
(i) the applicant meets the requirements for service under the court's
selection plan;
(ii) the applicant will not discriminate against parties or attorneys on the
basis of race, ethnic origin, gender, or other protected personal
characteristic; and
(iii) the mediator will comply with the court's ADR plan, orders of the
court regarding cases submitted to mediation, and the standards of conduct
adopted by the State Court Administrator under subrule (K). |
(b) The applicant shall indicate on the form whether the applicant is willing
to offer evaluative mediation, and the applicant's hourly rate for
providing mediation services.
(c) 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. |
(2) Review of Applications. The court's ADR plan shall provide for a person
or committee to review applications annually, or more frequently if
appropriate, and compile a list of qualified mediators.
(a) Persons meeting the qualifications specified in this rule shall be
placed on the list of approved mediators. Approved mediators shall be placed
on the list 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.
(b) Selections shall be made without regard to race, ethnic origin, or
gender. Residency or principal place of business may not be a qualification.
(c) The approved list and the applications of approved mediators, except for
the optional section identifying the applicant's gender and racial/ethnic
background, shall be available to the public in the office of the ADR clerk. |
(3) Rejection; Reconsideration. Applicants who are not placed on the 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 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 see reconsideration of the original decision.
(4) Removal from List. The ADR clerk may remove from the list mediators who
have demonstrated incompetence, bias, made themselves consistently unavailable
to serve as a mediator, or for other just cause. 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
thefamily division. The court does not need to provide a hearing.
(G) Qualification of Mediators.
(1) To be eligible to serve as a domestic relations mediator under this rule,
an applicant must meet the following minimum qualifications:
(a) The applicant must
(i) be a licensed attorney, a licensed or limited licensed psychologist,
a licensed professional counselor, or a licensed marriage and family therapist;
(ii) have a masters degree in counseling, social work, or marriage and
family therapy;
(iii) have a graduate degree in a behavioral science; or
(iv) have 5 years experience in family counseling.
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(b) The applicant must have completed a training program approved by the
State Court Administrator providing the generally accepted components of
domestic relations mediation skills.
(c) The applicant must have observed two domestic relations mediation
proceedings conducted by an approved mediator, and have conducted one domestic
relations mediation to conclusion under the supervision and observation of an
approved mediator. |
(2) An applicant who has specialized experience or training, but does not meet
the specific requirements of subrule (G)(1), may apply to the ADR clerk for
special approval. The ADR clerk shall make the determination on the basis of
criteria provided by the State Court Administrator.
(3) Approved mediators are required to obtain 8 hours of advanced mediation
training during each 2-year period. Failure to submit documentation
establishing compliance is grounds for removal from the list under
subrule(F)(4).
(4) Additional qualifications may not be imposed upon mediators.
(H) Mediation Procedure.
(1) The mediator must schedule a mediation session within a reasonable time at
a location accessible by the parties.
(2) A mediator may require that no later than 3 business days before the
mediation session, each party submit to the mediator, and serve on the opposing
party, 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;
(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.
(3) The parties must attend the mediation session in person unless excused by
the mediator.
(4) 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.
(5) 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.
(6) Within 7 days of the completion of mediation, the mediator shall so advise
the court, stating only the date of completion of the process, who participated
in the mediation, whether settlement was reached, and whether further ADR
proceedings are contemplated. If an evaluation will be made under subrule (I),
the mediator may delay reporting to the court until completion of the
evaluation process.
(7) 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.
(8) Statements made during the mediation, including statements made in written
submissions, may not be used in any other proceedings, including trial. Any
communications between the parties or counsel and the mediator relating to a
mediation are confidential and shall not be disclosed without the written
consent of all parties. This prohibition does not apply to
(a) the report of the mediator under subrule (H)(6),
(b) information reasonably required by court personnel to administer and
evaluate the mediation program,
(c) information necessary for the court to resolve disputes regarding the
mediator's fee, or
(d) information necessary for the court to consider issues raised under MCR
2.410(D)(3) or 3.216(H)(2). |
(I) Evaluative Mediation.
(1) This subrule applies if the parties requested evaluative mediation, or if
they do so at the conclusion of mediation and the mediator is willing to
provide an evaluation.
(2) If a settlement is not reached during mediation, the mediator, within a
reasonable period after the conclusion of mediation 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.
(3) If both parties accept the mediator's recommendation in full, the
attorneys shall proceed to have a judgment entered in conformity with the
recommendation.
(4) 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, mediator shall report to the court under
subrule (H)(6), and the case shall proceed toward trial.
(5) A court may not impose 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.
(6) 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 that each shall pay
one-half of the mediator's fee no later than:
(a) 42 days after the mediation process is concluded or the service of the
mediator's report and recommendation under subrule (I)(2), 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.
(K) Standards of Conduct. The State Court Administrator shall
develop and approve standards of conduct for domestic relations
mediators 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.
Michigan Supreme Court
State Court Administrative Office
Interim Mediation Training Standards and Procedures
7.0 Domestic Relations Mediator Qualifications for MCR 3.216 Mediation &
Grandparenting
Training Requirements under Court rule 3.216
Persons meeting the criteria of MCR 3.216(G)(1) (completion of a 40-hour
SCAO-approved Domestic Relations Mediation training, meeting the degree or
experience requirement, and observation and conducting of mediation) and who
have completed a four- hour program on domestic violence approved by the State
Court Administrative Office are approved to serve as mediators on a court
roster.
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