General Practice, Solo & Small Firm DivisionBest of ABA Sections
SPRING 1998 - VOLUME 2, NUMBER 1
Domestic Relations Law
Making Mediation Work
By Harvey I. Hauer
In Michigan and many other states, mediation has become an important settlement tool in divorce cases. Mediators, unlike arbitrators and judges, are not decision makers. Their role is to assist the parties in arriving at their own settlement. Mediation is not intended to make clients happy. Rather, the goal is a settlement agreement that the parties can live with.
Before mediation begins, lawyers educate clients about the realities of mediation, including the roles of each participant. Clients are made to understand that opposing counsel’s ridiculous-sounding arguments might not sound so crazy to a third party. The mediator’s job is to identify the issues upon which the parties can compromise and to bring those issues to the table. Mediation is not viewed as just another bureaucratic step up the courthouse stairs. Clients understand that if they go to trial, they give up the right to decide their own fates, they put their destiny in the hands of a stranger, and they may well find the outcome intolerable.
Mediators make a concerted effort to maintain neutrality throughout the process. The rules that apply to disqualification of judges also apply to mediators. The mediator must be an innovative, impartial facilitator who explores a multitude of alternatives to bring about an agreement. Generally, attorneys who have considerable experience in family law and substantial knowledge of the issues make the best mediators. Michigan court rules require that mediators be members in good standing of the state bar; have practiced law for at least five years; have actively practiced domestic relations law for three of the past five years in a circuit with more than 250,000 people; and have devoted at least one-fourth of their time to a domestic relations practice during three of the past five years. A year as a circuit judge or equivalent position in which the court has exclusive original jurisdiction in divorce cases qualifies as a year of domestic relations practice. Michigan permits parties to choose the mediator if they can agree on one. However, clients often defer to their counsel, who are more knowledgeable about a prospective mediator’s skills.
Custody and visitation concerns need expeditious resolution and should be mediated first. Monetary issues, on the other hand, should be mediated upon completion of discovery, unless the amount in controversy is so small as to dictate otherwise.
Communications in the mediation process are privileged in Michigan by court rule. However, the mediator is permitted to testify as to the interpretation of a written settlement agreement. A written agreement between the parties and mediator also details the mediator’s fee agreement. Typically, the mediator’s fee is shared equally by the parties. However, they may mediate or litigate the issue of fees and costs. If splitting the mediator’s fee places an economic hardship on one party, another arrangement is generally made.
In some jurisdictions, mediators are cloaked with immunity from civil lawsuits. If a mediator is not immune to lawsuits, malpractice insurance may afford protection when he or she is wearing the mediator’s hat. Most malpractice insurance policies afford coverage to lawyer-mediators at no additional cost.
The mediator gathers information through statements the parties submit prior to the mediation. The statements contain the facts and circumstances of the case, including the length of the marriage; age of the parties and their children, if any; health, education, and work history of the parties; other pertinent facts that would be helpful to a mediator in resolving the case; identification of issues in dispute; a description of assets and their estimated values; a complete list of all creditors and the amount owed to each; the income and expenses of the parties; a proposed settlement that leaves room for compromise; and documentary evidence to substantiate the summary. Each client reviews his or her statement with counsel before giving it to opposing counsel and the mediator. In addition, he or she reviews the opposing party’s mediation statement.
An effective mediation session generally begins with everyone in one room, except in cases involving a victim of domestic violence who prefers not to be in a room with the other party. In cases involving even a hint of domestic violence, the mediator must establish that he or she will control the process and that inappropriate conduct will not be permitted. The mediator must be sensitive to the rights of the victim and maintain an atmosphere that affords comfort with the process. In most other cases, attendance is mandatory for both attorneys and clients. The mediator reminds the parties why they are there, how the process works, the realities of trying a case, the significance of a trial date, the cost of a trial, and the high success rate of mediation. The mediator may review discrepancies in the respective summaries with the parties and, if possible, seek stipulations that are binding during the mediation process. For example, the parties might disagree on a particular asset’s value, but they may be willing to accept some middle ground for purposes of mediation.
After the introductory phase, the mediator dispatches each party and his or her attorney to different rooms. Then "shuttle diplomacy" commences, and the mediator moves from one party to another, encouraging them to vent their feelings and tell everything they would want a judge to know. In this setting, the mediator gains insight into what is important to each party, what the parties’ real needs are, and how willing each one is to compromise. Once this is known, the mediator is better able to fashion a settlement upon which the parties are likely to agree.
The mediated agreement is reduced to writing immediately and signed by both parties and their attorneys. The agreement contains everything that should be set forth in a final order, as the there may be no opportunity to modify it later.
If mediation does not resolve the issues, the parties can agree to schedule another mediation session; ask the mediator to make a binding decision regarding any unsettled issues; or request that the mediator write a report. The mediation report contains significant facts, all relevant issues in the case, and the mediator’s recommendation for resolving them. Some recommendations will reflect the mediator’s opinion of what constitutes an equitable resolution; others will reflect what the court is likely to determine. Counsel may tell the mediator which of these alternatives they prefer. In Michigan, the mediation report is not available to the judge, and sanctions may not be imposed on parties who reject the recommendation.
Binding mediation is a new hybrid process that may become widespread in the coming decades. It requires the parties to allow the mediator to become a decision maker if they are unable to reach a settlement. The parties may also instruct the mediator to render a decision after hearing their arguments and positions or to seek additional information. The information may come to the mediator informally or through formal testimony.
One problem with binding mediation is that the open communication that results from the confidential and private nature of mediation may be compromised if the parties know that the mediator may later become a decision maker. This could inhibit the settlement process. The primary benefit of binding mediation is that the case is presented only once, thus expediting the process and reducing the cost. Making mediation mandatory should substantially reduce the number of cases on the docket, enabling a more expeditious resolution of all cases.
Harvey I. Hauer is the principal of Harvey Hauer, P.C., where he practices family law. He is a Fellow of the American Academy of Matrimonial Lawyers and past chair of the Family Law Sections of the State Bar of Michigan and the Oakland County Bar Association.
This article is an abridged and edited version of one that originally appeared on page 37 in Family Advocate, Fall 1996 (19:2).