In family law cases, and in other civil matters in general, the Courts generally require the parties to try and work out their differences without needing to go to trial. The Courts use a number of different methods to try and resolve the disputes between parties, without he need for Court intervention. Those various methods are universally referred to as Alternative Dispute Resolution. The methods used are commonly referred to as facilitation, mediation and arbitration. Whether you have a divorce, child custody case, child support, spousal support or other family law issue, odds are good you will be ordered to participate in alternative dispute resolution by your Judge.
What is facilitation/mediation?: The process of facilitation/mediation is rather simple to explain, but is complex in nature. At a mediation, the parties meet informally with an attorney or court appointed mediator, and attempt to negotiate a resolution with the help or facilitation of a neutral mediator. As a general rule, attorneys and parties are encouraged to submit summaries of what they are looking for a as an outcome to the mediation, but that is not a requirement. Some mediators have all the parties sit together in one room. Other mediators have the parties sit in different rooms and the mediator goes back and forth between them, presenting positions and negotiating a settlement. Some mediations require additional sessions and cannot be completed in one attempt. When mediation is successful, the mediator must either make a recording of the agreement with the parties, after which the parties must acknowledge that they are in agreement and that they understood the agreement and have agreed to the terms, or, the mediator must put together a writing of the agreement, containing all of the terms and conditions of the settlement, which the parties must sign.
What is arbitration?: The process of arbitration is similar to mediation, but there are some differences. First, at arbitration, the dispute resolution specialist appointed to resolve the matter must be an attorney. Second, the parties must expressly agree to use the arbitration process and the parties must acknowledge on the record that they have determined they want to engage in the binding arbitration process. Third, unlike mediation, the parties or lawyers are required to submit written summaries to the arbitrator making their arguments about what a fair outcome would be for the case. The entire arbitration proceeding is generally recorded on either a tape recording or by a stenographer. The parties are allowed to have witnesses and experts actually testify at the arbitration, which is almost never done in mediation. In some cases, after the evidence and arguments are made on the record, the arbitrator will allow the attorneys or the parties to submit a final or closing argument in writing, summing up the positions of the parties and their interpretation of the evidence. Once that is done, the arbitrator issues a written binding arbitration award, which must resolve all of the pending issues raised by the parties, or which must be legally disposed. The parties must either adopt the award, or object to the award. However, there are limited grounds upon which to modify or vacate a binding arbitration award, and there is very limited case law in the family law context interpreting those rules. Simply put, appealing an arbitration award, and winning, is a long shot at best. Once the award is issued, it is generally final.
New Caselaw Makes Changes: On January 23, 2018, the Michigan Court of Appeals determined that, where the parties have entered into a written mediation agreement that resolves all issues, the Court may adopt that written mediation agreement into a judgment of divorce, even where one of the parties states that, ostensibly, they have changed their mind after the mediation. In Rettig v. Rettig, the Court made exactly that determination. While the trial courts have done this in the past, the Court of Appeals had never expressly endorsed the practice. Now they have. The practical result: make sure that you are certain that you are in agreement with the mediated settlement that you have entered into. If not, there is a chance the Court may simply incorporate the written memorandum into a final judgment, and you’ll be required to abide by it.