Considering Mediation
Mediation programs can be very beneficial to people who are divorcing as well as to those who have long been divorced but who find themselves in a dispute in their post-divorce relationship. It is a cooperative method of dispute resolution that is led by a neutral party who assists the couple in reaching their own agreements.
This method of resolving disputes is an alternative to the more common method of litigation, (resolving disputes in court) which is intentionally confrontational and involves attorneys representing one side against the other and results in one "winner"� and one "loser."� Mediation also has the advantage of often being less expensive and time consuming than resolving disputes in court. That being so, it is well worth investigating by any couple facing divorce, a child custody or visitation dispute, or other interpersonal conflict.
Contested issues may be sent to mediation either by request of one of the parties, both parties together, or by the judge for resolution.
Cases are exempt from mediation for the following reasons:
- Child abuse or neglect
- Domestic abuse, unless both parties' attorneys are present at the mediation
- Inability of one or both parties to negotiate for himself/herself unless both parties' attorneys attend the mediation
- Reason to believe that one or both parties' health or safety would be at risk if the mediation took place, or
- For other good cause
(MCR 3.216)
Mediation is conducted by a mediator who is selected by agreement of the parties or appointment from a list of qualified mediators. The parties can opt for either private mediation, for which they pay and in which court rules do not apply, or use the Friend of the Court to mediate any disputes. Confidential mediation on one or two issues is provided, generally for free, by the Friend of the Court. Each Friend of the Court is required to provide mediation services for custody and parenting time disputes.
(MCL 552.513; MCR 3.216(E))
Information provided to a mediator is confidential. At the completion of the mediation, the mediator files a written report with the court advising who attended mediation, whether a settlement was reached, and whether further alternative dispute resolution proceedings are planned, unless the parties requested evaluative mediation.
Evaluative mediation means that the parties requested, and the mediator agreed to provide, a written proposed recommendation to resolve any issues that remain at the conclusion of the mediation. This report is supplied to the parties only, and not to the court, and is used for settlement purposes. Mediation is a tool for the parties to use to resolve their differences among themselves, with the assistance of the mediator, without resorting to a trial. The mediator usually suggests a settlement for each issue. It is important to remember there are no penalties to either party for failing to settle after a mediation, and the court will have no knowledge of the reason for the breakdown of the settlement negotiations. (MCR 3.216(A))
Facilitative mediation is another form of mediation the parties can choose, in which the mediator's function is only to help the parties work out their own settlement agreement.
The idea behind mediation is that the parties will better comply with an agreement they formulate themselves than one that is imposed upon them. The mediator may ask questions, assist the parties in analyzing options for resolution, and act as a bridge for communication between the parties. In this form of mediation, the mediator submits no written statement or opinion to the court.
(MCR 3.216(I))
Court Rule Mediation
Michigan courts may order divorcing couples into mandatory mediation on any disputed issue. If an agreement is reached during mediation, it is taken to the judge, who will sign it as an order. If no agreement is reached, the mediator will prepare a report with recommendations, to which the parties can either agree or go to trial. The judge will not know what the mediator recommended or who disagreed with the recommendation.
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