Columns
Sherry Delisle and Cheryl Wallace didn’t expect to change the law, but they did
August 01 ,2024
Years ago, I had an unexpected meeting with a gentleman who worked high
up in the benefits department of an automotive manufacturer before
ERISA’s enactment.
:
JJ?Conway
Years ago, I had an unexpected meeting with a gentleman who worked high up in the benefits department of an automotive manufacturer before ERISA’s enactment. He had an encyclopedic knowledge about the run up to the law’s passage in 1974 and the opposition the law faced. Almost every interest group was against ERISA – the automakers, the unions, most private companies, and even state and local governments. Its passage is something of a legislative miracle. What I remember most about our conversation was his response when I asked him what happened after ERISA passed. He said his company set the lawyers loose to shape the law the way they wanted it interpreted.
Perhaps, it’s not surprising then that ERISA can be a tough law for the very people it was meant to protect. Federal courts routinely cited “policy reasons” for restraint in construing the law’s protections. Courts took the view that employees should be thankful for the benefits they had since ERISA did not actually mandate the providing of any benefits. (ERISA only imposed standards on plans once they offered benefits to employees). To compound matters, the federal courts crafted difficult legal burdens to overturn discretionary decisions by an employee benefit plan. Nowhere were the judicial obstacles more pronounced than in the area of disability income replacement benefits.
Looking back on it now, it is interesting that two cases involving two hardworking and successful employees were able to push past these obstacles and improve the lives of many others trying to secure disability insurance benefits. I had the good fortune to work with these two remarkable women and witness firsthand their resolve in fighting against difficult odds.
The first case involved the claims of Sherry DeLisle, the chief financial officer of a luxury jeweler. Sherry had been seriously injured in an automobile accident that left her occupationally disabled. Despite her physical limitations and concentration difficulties, Sherry was trying to push through her pain and cognitive issues. Her work was complex, and she was having trouble keeping up. She was ultimately fired for non-performance of her job.
Sherry filed a claim for disability benefits and asserted that she was functionally disabled while still working. She argued that her diminished performance was evidence of her disability after years of accolades, bonuses, pay increases, and promotions. Her benefit plan’s insurer denied the claim.
The insurer claimed Sherry had no coverage since she had been terminated by her employer. The case went to full briefing in a federal district court. Sherry won. But the court allowed the insurer to reprocess the claim and decide whether Sherry was, in fact, occupationally disabled, despite her being off work and later being deemed disabled by the Social Security Administration.
Reviewing her claim a second time, the insurer now claimed that Sherry was “not disabled” based on the file reviews of several physicians working for the insurer or under contract with the insurer. Sherry countered with multiple treating physicians, considerable objective evidence showing extensive hardware and spinal repair, cognitive tests, and affidavits. Again, the insurer upheld the denial. Sherry went back to federal court and challenged her disability insurer’s claims practices. Sherry’s case spanned more than seven years before two different trial court judges and the U.S. Court of Appeals for the Sixth Circuit and a full en banc briefing.
When it was over, Sherry’s case established the “evaluation of factors” analysis in ERISA long-term disability cases. DeLisle v. Sun Life Assurance Company of Canada, 558 F.3d 440 (6th Cir. 2009). This was a key development because it established a framework for analyzing these types of claims. A reviewing court would now look at different evidentiary factors and decide whether a participant was entitled to benefits or whether an insurer abused its discretionary decision-making authority. It also helped make sense of the Supreme Court’s ruling in MetLife v. Glenn, 554 U.S. 105 (2008), a case that originated in the Sixth Circuit. See also “Refining Wilkins: A 20-Year Look at the Factors Used in the Sixth Circuit’s Resolution of Disability Claims Under ERISA,” 34 W. Mich. U. Cooley L. Rev. 2018.
Years later, the Sixth Circuit decided Wallace v. Oakwood Healthcare, Inc., 954 F.3d 879 (6th Cir. 2020). Cheryl Wallace, a decades-long nurse and medical volunteer, contracted a serious infectious disease while traveling abroad. Cheryl became seriously ill and was unable to return to work. Her employee plan denied her claim, arguing that she did not exhaust her pre-suit remedies.
A “failure to exhaust” defense was reflexively asserted in nearly every ERISA claim, and its application was uneven at best. Some cases would be dismissed with prejudice for a failure to exhaust. Other cases would be sent back to the plan by the court to allow a participant to exhaust their remedies. The exhaustion doctrine was commonly used as a technical defense to sink an otherwise valid claim by missing a step in the pre-litigation process.
Cheryl challenged the exhaustion doctrine in federal court. She argued that if an insurance company was going to insist that a plan participant exhaust their remedies, it had to write that requirement into its contract. Otherwise, there was nothing to require Cheryl — or any other plan member — to take this step. Interestingly, in the nearly fifty years since ERISA had been around, this issue had not been decided at the appellate level.
Cheryl prevailed with the U.S. Court of Appeals for the Sixth Circuit finding that if a benefit plan did not require exhaustion of remedies, it was no longer required. The reasoning in her case was adopted by the Eighth Circuit Court of Appeals, and there has not been a decision holding otherwise to date.
Neither Sherry DeLisle nor Cheryl Wallace set out to change the law. Rather, they both had a contractual dispute in need of a resolution. Both were provided opportunities to resolve their claims by pursuing early settlements. Somewhere along the way something changed. Their cases stopped being about their own individual claims. They took a broader view, despite the financial hardship. The idea of helping others became more appealing and entered into their approach to litigation.
There are risks to this approach. There are also rewards. And when the decision to go big ends up changing the way things are done, there is a kind of magic that happens. And it is something to behold when a client can experience it, just like Sherry DeLisle and Cheryl Wallace did.
—————
John Joseph (J.J.) Conway is an employee benefits and ERISA attorney and litigator and founder of J.J. Conway Law in Royal Oak.
Perhaps, it’s not surprising then that ERISA can be a tough law for the very people it was meant to protect. Federal courts routinely cited “policy reasons” for restraint in construing the law’s protections. Courts took the view that employees should be thankful for the benefits they had since ERISA did not actually mandate the providing of any benefits. (ERISA only imposed standards on plans once they offered benefits to employees). To compound matters, the federal courts crafted difficult legal burdens to overturn discretionary decisions by an employee benefit plan. Nowhere were the judicial obstacles more pronounced than in the area of disability income replacement benefits.
Looking back on it now, it is interesting that two cases involving two hardworking and successful employees were able to push past these obstacles and improve the lives of many others trying to secure disability insurance benefits. I had the good fortune to work with these two remarkable women and witness firsthand their resolve in fighting against difficult odds.
The first case involved the claims of Sherry DeLisle, the chief financial officer of a luxury jeweler. Sherry had been seriously injured in an automobile accident that left her occupationally disabled. Despite her physical limitations and concentration difficulties, Sherry was trying to push through her pain and cognitive issues. Her work was complex, and she was having trouble keeping up. She was ultimately fired for non-performance of her job.
Sherry filed a claim for disability benefits and asserted that she was functionally disabled while still working. She argued that her diminished performance was evidence of her disability after years of accolades, bonuses, pay increases, and promotions. Her benefit plan’s insurer denied the claim.
The insurer claimed Sherry had no coverage since she had been terminated by her employer. The case went to full briefing in a federal district court. Sherry won. But the court allowed the insurer to reprocess the claim and decide whether Sherry was, in fact, occupationally disabled, despite her being off work and later being deemed disabled by the Social Security Administration.
Reviewing her claim a second time, the insurer now claimed that Sherry was “not disabled” based on the file reviews of several physicians working for the insurer or under contract with the insurer. Sherry countered with multiple treating physicians, considerable objective evidence showing extensive hardware and spinal repair, cognitive tests, and affidavits. Again, the insurer upheld the denial. Sherry went back to federal court and challenged her disability insurer’s claims practices. Sherry’s case spanned more than seven years before two different trial court judges and the U.S. Court of Appeals for the Sixth Circuit and a full en banc briefing.
When it was over, Sherry’s case established the “evaluation of factors” analysis in ERISA long-term disability cases. DeLisle v. Sun Life Assurance Company of Canada, 558 F.3d 440 (6th Cir. 2009). This was a key development because it established a framework for analyzing these types of claims. A reviewing court would now look at different evidentiary factors and decide whether a participant was entitled to benefits or whether an insurer abused its discretionary decision-making authority. It also helped make sense of the Supreme Court’s ruling in MetLife v. Glenn, 554 U.S. 105 (2008), a case that originated in the Sixth Circuit. See also “Refining Wilkins: A 20-Year Look at the Factors Used in the Sixth Circuit’s Resolution of Disability Claims Under ERISA,” 34 W. Mich. U. Cooley L. Rev. 2018.
Years later, the Sixth Circuit decided Wallace v. Oakwood Healthcare, Inc., 954 F.3d 879 (6th Cir. 2020). Cheryl Wallace, a decades-long nurse and medical volunteer, contracted a serious infectious disease while traveling abroad. Cheryl became seriously ill and was unable to return to work. Her employee plan denied her claim, arguing that she did not exhaust her pre-suit remedies.
A “failure to exhaust” defense was reflexively asserted in nearly every ERISA claim, and its application was uneven at best. Some cases would be dismissed with prejudice for a failure to exhaust. Other cases would be sent back to the plan by the court to allow a participant to exhaust their remedies. The exhaustion doctrine was commonly used as a technical defense to sink an otherwise valid claim by missing a step in the pre-litigation process.
Cheryl challenged the exhaustion doctrine in federal court. She argued that if an insurance company was going to insist that a plan participant exhaust their remedies, it had to write that requirement into its contract. Otherwise, there was nothing to require Cheryl — or any other plan member — to take this step. Interestingly, in the nearly fifty years since ERISA had been around, this issue had not been decided at the appellate level.
Cheryl prevailed with the U.S. Court of Appeals for the Sixth Circuit finding that if a benefit plan did not require exhaustion of remedies, it was no longer required. The reasoning in her case was adopted by the Eighth Circuit Court of Appeals, and there has not been a decision holding otherwise to date.
Neither Sherry DeLisle nor Cheryl Wallace set out to change the law. Rather, they both had a contractual dispute in need of a resolution. Both were provided opportunities to resolve their claims by pursuing early settlements. Somewhere along the way something changed. Their cases stopped being about their own individual claims. They took a broader view, despite the financial hardship. The idea of helping others became more appealing and entered into their approach to litigation.
There are risks to this approach. There are also rewards. And when the decision to go big ends up changing the way things are done, there is a kind of magic that happens. And it is something to behold when a client can experience it, just like Sherry DeLisle and Cheryl Wallace did.
—————
John Joseph (J.J.) Conway is an employee benefits and ERISA attorney and litigator and founder of J.J. Conway Law in Royal Oak.
Reflections from the bench
August 01 ,2024
Reflection comes from the Latin word introspicere, which means “to look
within.” It has been requested, that I share my reflections, from the
bench. Thank you. I will do my best to honor this request.
:
Hon. Timothy Connors
Reflection comes from the Latin word introspicere, which means “to look within.” It has been requested, that I share my reflections, from the bench. Thank you. I will do my best to honor this request.
We have all experienced the clamor of a courtroom. It should come as no surprise that courtrooms are cacophonous. Courtrooms are the place, where chaos has a space, to be corralled and calmed.
Our courtrooms are time machines. In each case, the past is resurrected into the present, for legal reflection and response. In each case, the future hovers. The required recordings of our proceedings constitute the fodder for appellate review.
Past, present and future coincide in the moment. While the past is recorded in the present, the present has already become past. And, it is in the quiet of that space that we reflect.
It has been said: “For what is in a word, but a sound? What is in a thought, but a quickening of the mind’s eye?” So what do we do in that moment? Do we dismember as we remember? Or do we rebuild and renew? The choice is ours. Where might we find common ground in consideration of that choice? Perhaps in the contract that we all share: The Lawyer’s Oath, required for admission to the Michigan State Bar.
Each of us have our individual moment when we solemnly affirmed that oath. Depending on the circumstances, some of those experiences might be more memorable than others. For me it was profound. My parents were still alive and sat in the jury box as witnesses. I was the first in our large and extended family to become a lawyer. I felt their pride in and hope for me as I became a member of our profession. I was sponsored into the Bar by future Judge Richard Conlin, who I was in private practice with at the time. His brother, Chief Judge Patrick Conlin, father of our current Chief Judge Patrick Conlin, Jr., administered the oath. It was in the same courtroom where I now serve as a judge.
Each time I perform this ceremony, I remember the moment of my own swearing-in as if it was yesterday. I see myself behind that podium where the young attorneys today stand. I see my parents in the proud families, sitting as witnesses in the jury box. I remember the kindness of Judge Conlin as I sit in the chair he sat in when he swore me in. Each and every time the ceremony repeats, I am acutely aware of the significance our courtrooms have on the human experience. The past is present, the present past, and we send our prayers and hopes into the future with each and every lawyer we admit into our bar.
Our Lawyer’s Oath is our contract. We make solemn promises in exchange for “the privilege to practice law in this state.” Those solemn promises represent the contract we make within ourselves, between ourselves as members of the profession, and to the public we individually and collectively serve. We are architects of society. As architects we have the responsibility to continuously ask ourselves certain questions. Among them are the following: What do we contribute that has value?
What have we built that deserves protection and preservation? What shelter do we provide from storms of chaos, conflict and discord that often time comes our way? What we do matters. We must never forget that.
In my courtroom, Courtroom 10, our Oath, our contract, hangs framed on the back wall of the courtroom. Beneath it is a brass plaque with one of the grandfather teachings, shared with our court by our Anishinaabe neighbors. It is the teaching of Humility.
There are twelve federally recognized Anishinaabe tribes in Michigan. The Nottawaseppi Huron Band of the Potawatomi, the tribe closest to our Washtenaw courts in geographic proximity, shares the grandfather teaching of Humility with the public as follows:
“Humility is to know that we are a part of creation. We must always consider ourselves equal to one another. We should never think of ourselves as being better or worse than anyone else. Humility comes in many forms. This includes compassion, calmness, meekness, gentleness and patience. We must reflect on how we want to present ourselves to those around us. We must be aware of the balance and equality with all of life including humans, plants and animals.”
I encourage you to reflect upon our Oath further. I encourage you to familiarize yourself with the other grandfather teachings: Respect; Love; Bravery; Wisdom; Honesty and Truth. I encourage you to reflect on the teachings of your ancestors. In reflecting on our common Oath, I invite you to notice how values articulated in teachings are part of our contract. Like Humility, these values are strengths, not weaknesses. They guide us in our work, and in our life walk.
The public we serve shares in this work and life walk as well. When prospective jurors sit in the back of Courtroom 10, beneath the framed Lawyer’s Oath, the very first instruction they are given states in pertinent part:
“Jury duty is one of the most serious duties that members of a free society are asked to perform. The right to a jury trial is an ancient tradition and part of our heritage. Our system of self-government could not exist without it. As jurors your sole duty is to find the truth and do justice…”
Their final instruction, before they deliberate, reaffirms:
“When you go to the jury room, your deliberations should be conducted in a serious and respectful manner. It is important that all ideas are voiced and considered during deliberations.”
In closing, I cite the last stanza of the poem “In the Quiet of an Empty Courtroom”:
In the quiet of this space
The past is present, the present past.
What we nurture in each case
Reverberates. To the last.
Síochána (Peace, in Irish)
Timothy Connors
Judge, Washtenaw County Trial Court
Judge Timothy P. Connors has been a State Court Judge since 1991. For eleven of those years he served as a Chief Judge. Judge Connors is the Presiding Judge for the Peacemaking Court, the Presiding Judge for the Business Court and handles civil and ICWA cases. He is a past co-chair, and current member of the Michigan Tribal-State-Federal Forum. Judge Connors has also served by appointment as Judge Pro Tem for the Little Traverse Bay Bands of Odawa Indians.
The Native American Rights Fund appointed Judge Connors to its Indigenous Peacemaking Initiative in 2017. The mission of this initiative is to support efforts of tribes and their allies to utilize traditional native methods of dispute resolution whenever those methods might afford desirable outcomes. Judge Connors is incorporating Peacemaking principles, philosophies and procedures shared by Tribal communities into State Court justice systems. This effort is supported by the Michigan Supreme Court. Cases identified as potential beneficiaries of Peacemaking are those where the litigants have ongoing relationships after the court’s adjudication is complete. In addition, cases where litigants need a more complete understanding of and closure to the conflict that brought them into court are also potential beneficiaries of Peacemaking. To date, successful outcomes of Peacemaking efforts have been witnessed in wrongful death suits, elder guardianship disputes, estate distribution issues, custody and parenting time disputes, neglect and abuse proceedings, juvenile domestic violence charges, and adult criminal sentencing circles.
Judge Connors co-authored a Law Review article on peacemaking entitled Restructuring American Law Schools: Peacemaking in First Year Curriculum; Wayne Law Review, Vol. 69, No. 3, Spring 2024. Judge Connors is the author of Rights, Relationships, Responsibilities, American Bar Association Human Rights Journal, July 2023. Judge Connors is the author of Exit, Pursued By a Bear, Why Peacemaking Makes Sense in State Court Justice Systems; American Bar Association Judges Journal, Fall 2016; Our Children are Sacred, Why the Indian Child Welfare Act Matters; American Bar Association Judges Journal, Spring 2011 and Crow Dogs vs. Spotted Tail: Case Closed?; Michigan Bar Journal, July 2010. He co-authored, TRIBAL COURT PEACEMAKING A Model for the Michigan State Court System? Michigan Bar Journal, June 2015.
Judge Connors has been awarded numerous honors throughout his career. In 2021, Judge Connors received the Daniel J. Wright Lifetime Achievement Award for Exemplary Services to Michigan’s Families and Children. Judge Connors was awarded the Tecumseh Peacekeeping Award for Dedicated Service to Protecting the Rights of American Indians from the Michigan State Bar Indian Law Section. Judge Connors was presented with the Patriot Award for Outstanding Service to the Bench, the Bar, and the Community from the Washtenaw County Bar Association in 2009.
Judge Connors is a three-time recipient of the Justice Blair Moody Award for Significant Contributions to Judicial Excellence. In 2014, Judge Connors was awarded the Child Welfare Jurist of the Year Award by the Foster Care Review Board.
He also received the Peace Builder Award on behalf of the Washtenaw County Peacemaking Court from the Dispute Resolution Center. This award was given “in recognition of outstanding commitment to the practice of just and humane resolution of social conflict.”
In 2014, Judge Connors was also elected Chairman of the Board of Eversight, a not-for-profit corporation dedicated to the restoration of sight.
In addition, in 2014, dbusiness, Detroit’s Premier Business Journal recognized Judge Connors as one of the “top circuit court judges” in Southeast Michigan. This recognition was based on integrity, knowledge of the law, efficiency and judicial temperament.
In 2015, Judge Connors received the Hilda Gage Judicial Excellence Award from the Michigan Judges Association. The award “honors judges who serve their profession and their communities with integrity, skill, and courage every day.”
In 2016, he was the recipient of the Reverend Thomas H. Smith Humanitarian Service Award from the Brown Chapel African Methodist Episcopal Church.
In 2017, the Youth Justice Fund appointed Judge Connors to their inaugural Advisory Board. Their mission is to assist children upon their release from detention in Michigan’s prisons and jails by providing mentoring, training, services, and resources necessary to ensure human dignity and full participation in the community.
Also in 2017, Judge Connors was the recipient of the National Council of Juvenile and Family Court Judges Innovator of the Year Award for Implementing Tribal Peacemaking Practices in a State Court System – The Washtenaw County Peacemaking Court.
In 2018, he received the Thurgood Marshall Civil Rights Award from the NAACP Ypsilanti Willow Run Branch.
He is also a past member of the National Council of Juvenile and Family Court Judges Tribal Leadership Forum. He is currently a member of the Michigan Judicial Council – Expanding Problem Resolution Approaches Work Group.
Judge Connors teaches Civil Trial Advocacy and/or Peacemaking and Restorative Justice at the University of Michigan Law School, Wayne State Law School and Vermont Law School.
We have all experienced the clamor of a courtroom. It should come as no surprise that courtrooms are cacophonous. Courtrooms are the place, where chaos has a space, to be corralled and calmed.
Our courtrooms are time machines. In each case, the past is resurrected into the present, for legal reflection and response. In each case, the future hovers. The required recordings of our proceedings constitute the fodder for appellate review.
Past, present and future coincide in the moment. While the past is recorded in the present, the present has already become past. And, it is in the quiet of that space that we reflect.
It has been said: “For what is in a word, but a sound? What is in a thought, but a quickening of the mind’s eye?” So what do we do in that moment? Do we dismember as we remember? Or do we rebuild and renew? The choice is ours. Where might we find common ground in consideration of that choice? Perhaps in the contract that we all share: The Lawyer’s Oath, required for admission to the Michigan State Bar.
Each of us have our individual moment when we solemnly affirmed that oath. Depending on the circumstances, some of those experiences might be more memorable than others. For me it was profound. My parents were still alive and sat in the jury box as witnesses. I was the first in our large and extended family to become a lawyer. I felt their pride in and hope for me as I became a member of our profession. I was sponsored into the Bar by future Judge Richard Conlin, who I was in private practice with at the time. His brother, Chief Judge Patrick Conlin, father of our current Chief Judge Patrick Conlin, Jr., administered the oath. It was in the same courtroom where I now serve as a judge.
Each time I perform this ceremony, I remember the moment of my own swearing-in as if it was yesterday. I see myself behind that podium where the young attorneys today stand. I see my parents in the proud families, sitting as witnesses in the jury box. I remember the kindness of Judge Conlin as I sit in the chair he sat in when he swore me in. Each and every time the ceremony repeats, I am acutely aware of the significance our courtrooms have on the human experience. The past is present, the present past, and we send our prayers and hopes into the future with each and every lawyer we admit into our bar.
Our Lawyer’s Oath is our contract. We make solemn promises in exchange for “the privilege to practice law in this state.” Those solemn promises represent the contract we make within ourselves, between ourselves as members of the profession, and to the public we individually and collectively serve. We are architects of society. As architects we have the responsibility to continuously ask ourselves certain questions. Among them are the following: What do we contribute that has value?
What have we built that deserves protection and preservation? What shelter do we provide from storms of chaos, conflict and discord that often time comes our way? What we do matters. We must never forget that.
In my courtroom, Courtroom 10, our Oath, our contract, hangs framed on the back wall of the courtroom. Beneath it is a brass plaque with one of the grandfather teachings, shared with our court by our Anishinaabe neighbors. It is the teaching of Humility.
There are twelve federally recognized Anishinaabe tribes in Michigan. The Nottawaseppi Huron Band of the Potawatomi, the tribe closest to our Washtenaw courts in geographic proximity, shares the grandfather teaching of Humility with the public as follows:
“Humility is to know that we are a part of creation. We must always consider ourselves equal to one another. We should never think of ourselves as being better or worse than anyone else. Humility comes in many forms. This includes compassion, calmness, meekness, gentleness and patience. We must reflect on how we want to present ourselves to those around us. We must be aware of the balance and equality with all of life including humans, plants and animals.”
I encourage you to reflect upon our Oath further. I encourage you to familiarize yourself with the other grandfather teachings: Respect; Love; Bravery; Wisdom; Honesty and Truth. I encourage you to reflect on the teachings of your ancestors. In reflecting on our common Oath, I invite you to notice how values articulated in teachings are part of our contract. Like Humility, these values are strengths, not weaknesses. They guide us in our work, and in our life walk.
The public we serve shares in this work and life walk as well. When prospective jurors sit in the back of Courtroom 10, beneath the framed Lawyer’s Oath, the very first instruction they are given states in pertinent part:
“Jury duty is one of the most serious duties that members of a free society are asked to perform. The right to a jury trial is an ancient tradition and part of our heritage. Our system of self-government could not exist without it. As jurors your sole duty is to find the truth and do justice…”
Their final instruction, before they deliberate, reaffirms:
“When you go to the jury room, your deliberations should be conducted in a serious and respectful manner. It is important that all ideas are voiced and considered during deliberations.”
In closing, I cite the last stanza of the poem “In the Quiet of an Empty Courtroom”:
In the quiet of this space
The past is present, the present past.
What we nurture in each case
Reverberates. To the last.
Síochána (Peace, in Irish)
Timothy Connors
Judge, Washtenaw County Trial Court
Judge Timothy P. Connors has been a State Court Judge since 1991. For eleven of those years he served as a Chief Judge. Judge Connors is the Presiding Judge for the Peacemaking Court, the Presiding Judge for the Business Court and handles civil and ICWA cases. He is a past co-chair, and current member of the Michigan Tribal-State-Federal Forum. Judge Connors has also served by appointment as Judge Pro Tem for the Little Traverse Bay Bands of Odawa Indians.
The Native American Rights Fund appointed Judge Connors to its Indigenous Peacemaking Initiative in 2017. The mission of this initiative is to support efforts of tribes and their allies to utilize traditional native methods of dispute resolution whenever those methods might afford desirable outcomes. Judge Connors is incorporating Peacemaking principles, philosophies and procedures shared by Tribal communities into State Court justice systems. This effort is supported by the Michigan Supreme Court. Cases identified as potential beneficiaries of Peacemaking are those where the litigants have ongoing relationships after the court’s adjudication is complete. In addition, cases where litigants need a more complete understanding of and closure to the conflict that brought them into court are also potential beneficiaries of Peacemaking. To date, successful outcomes of Peacemaking efforts have been witnessed in wrongful death suits, elder guardianship disputes, estate distribution issues, custody and parenting time disputes, neglect and abuse proceedings, juvenile domestic violence charges, and adult criminal sentencing circles.
Judge Connors co-authored a Law Review article on peacemaking entitled Restructuring American Law Schools: Peacemaking in First Year Curriculum; Wayne Law Review, Vol. 69, No. 3, Spring 2024. Judge Connors is the author of Rights, Relationships, Responsibilities, American Bar Association Human Rights Journal, July 2023. Judge Connors is the author of Exit, Pursued By a Bear, Why Peacemaking Makes Sense in State Court Justice Systems; American Bar Association Judges Journal, Fall 2016; Our Children are Sacred, Why the Indian Child Welfare Act Matters; American Bar Association Judges Journal, Spring 2011 and Crow Dogs vs. Spotted Tail: Case Closed?; Michigan Bar Journal, July 2010. He co-authored, TRIBAL COURT PEACEMAKING A Model for the Michigan State Court System? Michigan Bar Journal, June 2015.
Judge Connors has been awarded numerous honors throughout his career. In 2021, Judge Connors received the Daniel J. Wright Lifetime Achievement Award for Exemplary Services to Michigan’s Families and Children. Judge Connors was awarded the Tecumseh Peacekeeping Award for Dedicated Service to Protecting the Rights of American Indians from the Michigan State Bar Indian Law Section. Judge Connors was presented with the Patriot Award for Outstanding Service to the Bench, the Bar, and the Community from the Washtenaw County Bar Association in 2009.
Judge Connors is a three-time recipient of the Justice Blair Moody Award for Significant Contributions to Judicial Excellence. In 2014, Judge Connors was awarded the Child Welfare Jurist of the Year Award by the Foster Care Review Board.
He also received the Peace Builder Award on behalf of the Washtenaw County Peacemaking Court from the Dispute Resolution Center. This award was given “in recognition of outstanding commitment to the practice of just and humane resolution of social conflict.”
In 2014, Judge Connors was also elected Chairman of the Board of Eversight, a not-for-profit corporation dedicated to the restoration of sight.
In addition, in 2014, dbusiness, Detroit’s Premier Business Journal recognized Judge Connors as one of the “top circuit court judges” in Southeast Michigan. This recognition was based on integrity, knowledge of the law, efficiency and judicial temperament.
In 2015, Judge Connors received the Hilda Gage Judicial Excellence Award from the Michigan Judges Association. The award “honors judges who serve their profession and their communities with integrity, skill, and courage every day.”
In 2016, he was the recipient of the Reverend Thomas H. Smith Humanitarian Service Award from the Brown Chapel African Methodist Episcopal Church.
In 2017, the Youth Justice Fund appointed Judge Connors to their inaugural Advisory Board. Their mission is to assist children upon their release from detention in Michigan’s prisons and jails by providing mentoring, training, services, and resources necessary to ensure human dignity and full participation in the community.
Also in 2017, Judge Connors was the recipient of the National Council of Juvenile and Family Court Judges Innovator of the Year Award for Implementing Tribal Peacemaking Practices in a State Court System – The Washtenaw County Peacemaking Court.
In 2018, he received the Thurgood Marshall Civil Rights Award from the NAACP Ypsilanti Willow Run Branch.
He is also a past member of the National Council of Juvenile and Family Court Judges Tribal Leadership Forum. He is currently a member of the Michigan Judicial Council – Expanding Problem Resolution Approaches Work Group.
Judge Connors teaches Civil Trial Advocacy and/or Peacemaking and Restorative Justice at the University of Michigan Law School, Wayne State Law School and Vermont Law School.
Justices need to detail reaons for pivotal ruling on immunity issue
July 25 ,2024
Now that the U.S. Supreme Court has inexplicitly decided that a
president like Donald Trump (all presidents) has partial immunity from
prosecution for crimes committed while president, we might give some
thought to existing immunity granted the entire judicial branch of our
government.
:
Berl Falbaum
Now that the U.S. Supreme Court has inexplicitly decided that a president like Donald Trump (all presidents) has partial immunity from prosecution for crimes committed while president, we might give some thought to existing immunity granted the entire judicial branch of our government.
This issue has escaped much-needed attention and been ignored for some 200+ years. The Court’s decision gives us an opening to address this subject.
I am referring to the fact that the justices, indeed all judges at very level, are protected by a baffling custom of not having to explain their decisions to the public.
While the judiciary is an equal branch of our government, it operates with a privilege that the other two -- the executive and legislative branches -- do not enjoy.
To be more specific:
--Why shouldn’t justices be required to explain why they decided not to hear a case?
--Why shouldn’t they be asked to elaborate and explain their rulings in either interviews with reporters or at press conferences?
--Why should they “get away” with overturning precedents without a word of explanation to the public?
The questions are endless, of course, but no one seems to be disturbed by this “undemocratic” phenomenon while it hardly serves the public interest.
It would be refreshing and educational to hear a judge presiding over a criminal trial explain why he/she excluded certain evidence or supply explanations for other crucial decisions.
When I headed the Detroit News City-County Bureau (many moons ago), one of my reporters covered the courts. I frequently asked him to call a judge and ask for an explanation of a ruling, and the reporter generally responded, “He won’t even answer the phone.”
I found that wrongheaded then as I do now.
A “no comment” has never bolstered the reputations of members of the legislative and executive branches and it does nothing to improve the stature of courts.
Consider, for a minute, a president refusing to answer why he issued an executive order or a lawmaker maintaining silence on the reasons for introducing legislation or why he/she voted for or against a pending bill.
There would be all hell to pay.
In its 1964 landmark ruling in New York Times v. Sullivan which dealt with defamation pertaining to public officials and pubic figures, Justice William J. Brennan Jr., writing for a unanimous court in dismissing a libel case, stated:
“…debate of public issues should be uninhibited, robust and wide-open…”
Let us say “hear ye, hear ye” to that.
Thus, it follows logically that if the Supreme Court were to implement the philosophy expressed in New York v. Sullivan and all the other courts were to follow with less “secrecy” about their rulings, it would produce a more open debate on public issues and that, certainly, would be in the public interest.
Another benefit would be a restoration of trust in the Court which in recent years, according to a variety of polls, has decreased along with respect for the judiciary. In an April poll, only 36 percent of Americans approved of the Supreme Court’s performance while 51 percent disapproved. In another poll, 52 percent disapproved and only 40 percent approved.
That does not serve us well. It is imperative that the judiciary, the final arbitrator of the law, not decide crucial issues under a cloud of distrust, doubt and misgivings. Secrecy breeds suspicion.
I read the code of conduct for judges and while it demands that they not discuss pending cases, the code is silent on the issue of what they may say after a case has been decided. The code does not deal with that at all.
I have no problem with justices/judges, meeting behind closed doors to deliberate and argue a case. They need privacy to permit a free exchange of ideas. But once decisions have been made, the need for secrecy ends. It’s over and the public, which has to live under final rulings, for better or worse, should be told what led to the outcome. It deserves answers and accountability. Such openness is not a detriment; it’s a benefit for democracy.
What if the nine Supreme Court justices sat down with reporters and both sides -- the six in the majority and the three dissenters -- explained their reasoning in the Trump immunity case. I think it is safe to conclude the country would be much more receptive to the outcome. Although, this one would be hard to swallow regardless of the “justification.”
I am tempted to start a campaign to change the system but I’m afraid I may be held in contempt of court.
—————
Berl Falbaum is a longtime political journalist and author of several books.
This issue has escaped much-needed attention and been ignored for some 200+ years. The Court’s decision gives us an opening to address this subject.
I am referring to the fact that the justices, indeed all judges at very level, are protected by a baffling custom of not having to explain their decisions to the public.
While the judiciary is an equal branch of our government, it operates with a privilege that the other two -- the executive and legislative branches -- do not enjoy.
To be more specific:
--Why shouldn’t justices be required to explain why they decided not to hear a case?
--Why shouldn’t they be asked to elaborate and explain their rulings in either interviews with reporters or at press conferences?
--Why should they “get away” with overturning precedents without a word of explanation to the public?
The questions are endless, of course, but no one seems to be disturbed by this “undemocratic” phenomenon while it hardly serves the public interest.
It would be refreshing and educational to hear a judge presiding over a criminal trial explain why he/she excluded certain evidence or supply explanations for other crucial decisions.
When I headed the Detroit News City-County Bureau (many moons ago), one of my reporters covered the courts. I frequently asked him to call a judge and ask for an explanation of a ruling, and the reporter generally responded, “He won’t even answer the phone.”
I found that wrongheaded then as I do now.
A “no comment” has never bolstered the reputations of members of the legislative and executive branches and it does nothing to improve the stature of courts.
Consider, for a minute, a president refusing to answer why he issued an executive order or a lawmaker maintaining silence on the reasons for introducing legislation or why he/she voted for or against a pending bill.
There would be all hell to pay.
In its 1964 landmark ruling in New York Times v. Sullivan which dealt with defamation pertaining to public officials and pubic figures, Justice William J. Brennan Jr., writing for a unanimous court in dismissing a libel case, stated:
“…debate of public issues should be uninhibited, robust and wide-open…”
Let us say “hear ye, hear ye” to that.
Thus, it follows logically that if the Supreme Court were to implement the philosophy expressed in New York v. Sullivan and all the other courts were to follow with less “secrecy” about their rulings, it would produce a more open debate on public issues and that, certainly, would be in the public interest.
Another benefit would be a restoration of trust in the Court which in recent years, according to a variety of polls, has decreased along with respect for the judiciary. In an April poll, only 36 percent of Americans approved of the Supreme Court’s performance while 51 percent disapproved. In another poll, 52 percent disapproved and only 40 percent approved.
That does not serve us well. It is imperative that the judiciary, the final arbitrator of the law, not decide crucial issues under a cloud of distrust, doubt and misgivings. Secrecy breeds suspicion.
I read the code of conduct for judges and while it demands that they not discuss pending cases, the code is silent on the issue of what they may say after a case has been decided. The code does not deal with that at all.
I have no problem with justices/judges, meeting behind closed doors to deliberate and argue a case. They need privacy to permit a free exchange of ideas. But once decisions have been made, the need for secrecy ends. It’s over and the public, which has to live under final rulings, for better or worse, should be told what led to the outcome. It deserves answers and accountability. Such openness is not a detriment; it’s a benefit for democracy.
What if the nine Supreme Court justices sat down with reporters and both sides -- the six in the majority and the three dissenters -- explained their reasoning in the Trump immunity case. I think it is safe to conclude the country would be much more receptive to the outcome. Although, this one would be hard to swallow regardless of the “justification.”
I am tempted to start a campaign to change the system but I’m afraid I may be held in contempt of court.
—————
Berl Falbaum is a longtime political journalist and author of several books.
The power of mediation in safeguarding parental rights and combating neglect and abuse in Michigan
July 18 ,2024
In the realm of family law, Michigan, like many other states, grapples
with the delicate balance between protecting parental rights and
ensuring the safety and well-being of children.
:
Philip Schaedler
Introduction
In the realm of family law, Michigan, like many other states, grapples with the delicate balance between protecting parental rights and ensuring the safety and well-being of children. Cases involving allegations of parental neglect and abuse can be emotionally charged and complex, often culminating in protracted legal battles. To address these challenges and promote more effective resolution, mediation has emerged as a powerful tool in Michigan's family court system. This article explores how mediation benefits parental rights and child protection in neglect and abuse cases, delving into the advantages, principles, and practical implementation of mediation in the state of Michigan.
Understanding the Michigan Family Court System
Before diving into the role of mediation in parental rights, neglect, and abuse cases, it is crucial to comprehend the Michigan family court system. Family court is a specialized court that handles a wide array of family-related matters, including divorce, child custody, visitation, child support, and cases involving allegations of parental neglect and abuse.
In these cases, the primary objective of the court is to safeguard the best interests of the child while respecting parental rights. However, striking the right balance is no easy feat. Allegations of abuse and neglect require careful consideration of the child's safety, the rights of the parents, and the need for a fair and just resolution. Formal proceedings in this context, such as evidentiary hearings, can be extraordinarily harmful to children and the potential for continued constructive relationships between parents. Mediation offers a private and largely confidential process to address these sorts of issues.
The Benefits of Mediation
Mediation, as an alternative dispute resolution (ADR) mechanism, offers numerous advantages in parental rights, neglect, and abuse cases in Michigan:
1. Preservation of Parent-Child Relationships: One of the primary benefits of mediation is that it seeks to preserve the parent-child relationship rather than sever it. In many cases, the removal of a child from their biological family can have profound and lasting effects on the child's well-being. Mediation provides an opportunity for parents to acknowledge the issues, address them, and find a way to maintain a relationship that is conducive to the child's best interests.
2. Empowerment and Self-Determination: Mediation empowers the parties involved in the dispute to make their own decisions. Parents are more likely to comply with agreements reached in mediation because they have actively participated in creating them. This autonomy can lead to more sustainable and cooperative co-parenting arrangements, even in cases where there have been allegations of neglect or abuse.
3. Efficiency and Cost-Effectiveness: Traditional litigation can be time-consuming and expensive. Mediation offers a more cost-effective and efficient means of resolving disputes. This is particularly beneficial in parental rights cases, as it allows for faster resolution and reduced strain on the already stretched resources of child protective services and the legal system.
4. Reduced Emotional Trauma for Children: Courtroom battles can be traumatic for children, especially when they are caught in the crossfire of parental disputes. Mediation takes place in a more relaxed and private setting, making it less intimidating for children. The process encourages a child-centric approach, fostering an environment that is less adversarial and more focused on the child's well-being.
5. Customized Solutions: Every family situation is unique, and mediation allows for customized solutions that can cater to the specific needs and circumstances of the family involved. The mediator helps the parties identify their own priorities and facilitates discussions to tailor solutions accordingly.
6. Self-Determination: Solutions developed by the parties themselves guided by a carefully crafted Case Services Plan are more practical, positive, durable, and productive. This approach allows parents to address their collateral needs and interests. In essence parents are allowed to get “well” before they expected to shoulder the responsibility of parenting.
Mediation Principles in Michigan
To be effective in parental rights, neglect, and abuse cases in Michigan, mediation adheres to certain guiding principles:
1. Neutrality and Impartiality: Mediators are neutral and impartial facilitators who do not take sides in the dispute. Their role is to guide the conversation, ensure each party's voice is heard, and help them reach mutually acceptable solutions.
2. Confidentiality: Michigan law places a high value on the confidentiality of mediation. Information shared during mediation cannot be used in court, ensuring that parties can speak openly without fear of repercussions.
3. Voluntary Participation: Mediation is a voluntary process, meaning that both parties must agree to participate. This voluntary aspect empowers parents and encourages their active engagement in the resolution process.
4. Informed Decision-Making: Mediation is about informed decision-making. Mediators assist parties in understanding their rights, responsibilities, and options so that they can make choices that are informed and in the best interests of their child.
5. Child-Centered Approach: Mediation in Michigan places the best interests of the child at the forefront. Mediators are trained to prioritize the welfare of the child, ensuring that all decisions consider the child's safety and well-being.
6. Inclusivity: Mediation of parental rights, child abuse and neglect cases encourage, where appropriate and permitted, the participation of all the interested parties: parents, attorneys, investigators, case workers, social workers and extended family members or other foster care providers. The dynamics are sometimes rather complicated but the end result provides the kind of support network essential to positive and durable outcomes.
Implementation of Mediation in Michigan
The implementation of mediation in parental rights, neglect, and abuse cases in Michigan involves several steps and considerations:
1. Referral to Mediation: Cases can be referred to mediation at various stages of the child protective process. This can occur before or after a court petition has been filed. Referral sources may include Child Protective Services (CPS), the court, attorneys, or even parents themselves.
2. Mediator Selection: Mediators are usually trained professionals with expertise in family law and conflict resolution. In Michigan, they must adhere to state standards and training requirements. Selection of a mediator is typically done through a court-approved list of qualified professionals.
3. Initial Meeting: Mediation typically begins with an initial meeting in which the mediator explains the process, ground rules, and the importance of confidentiality. Each party is given the opportunity to express their concerns, objectives, and needs.
4. Information Gathering: The mediator facilitates the exchange of information between the parties. This may involve discussing allegations of neglect or abuse, exploring potential solutions, and identifying the child's best interests.
5. Negotiation and Agreement: The heart of mediation is the negotiation process. The mediator helps parties generate options, encourages dialogue, and guides them toward a mutually agreeable solution. Agreements reached in mediation can be incorporated into court orders if necessary.
6. Follow-up and Compliance: After an agreement is reached, follow-up sessions may be scheduled to ensure compliance. Mediators can also help address any new issues that may arise in the future.
7. Court Approval: In some cases, the final agreement may require court approval. The court will assess whether the agreement is in the best interests of the child and may issue a court order based on the mediated agreement.
8. Economics: Approaching parental rights cases through the mediation process in many cases, if not most, allows the court to employ a no cost/low-cost alternatives to the resolution of these matters. Highly skilled, experienced mediators trained to identify domestic violence issues, substance abuse issues and the effects of trauma, among other things, are available through the state’s network of community dispute resolution centers. Mediation can assist the parents, the court, the extended family and responsible agencies in the development of constructive and productive plans for reunification and permanency.
Case Study: The Role of Mediation in a Neglect and Abuse Case
To illustrate how mediation can benefit parental rights and child protection in Michigan, consider the following case:
Case Background: A case is brought to the attention of Child Protective Services (CPS) regarding allegations of neglect and emotional abuse. The parents are separated and have been unable to co-parent effectively. The child, a 9-year-old girl, is displaying behavioral and emotional issues at school.
Mediation Process:
1. Referral to Mediation: CPS seeks the assistance of a mediator through the court The Court refers the case to mediation as a way to resolve the disputes between the parents and address the child's well-being.
2. Mediator Selection: A qualified mediator is appointed from a list of court-approved mediators.
3. Initial Meeting: The mediator meets separately with each parent to explain the process, assure them of confidentiality, and identify their concerns.
4. Information Gathering: In joint sessions, the mediator helps the parents express their concerns, including the alleged neglect and emotional abuse. The child's best interests are discussed, focusing on her need for emotional stability and a healthy relationship with both parents.
5. Negotiation and Agreement: With the mediator's guidance, the parents discuss their issues, concerns, and the possibility of co-parenting more effectively. They create a parenting plan or customize a Case Services Plan that includes specific provisions for communication, visitation, and decision-making. The parents and the agency work together to address collateral issues that must resolved to maximize the potential for success for the parents.
6. Follow-up and Compliance: The mediator schedules follow-up sessions to ensure that the parents are adhering to the agreed-upon plan. Over time, as the parents resolve their personal issues, learn to communicate better and provide a more stable environment for their child, the child's behavior and emotional well-being begins to improve.
7. Court Approval: With the child's well-being at the center, the court approves the mediated parenting plan, making it a legally binding order.
Benefits of Mediation in the Case:
• The child's best interests were prioritized throughout the process.
• The parents were actively engaged in creating a plan that would benefit their child and themselves.
• The child's exposure to further emotional trauma was minimized.
• The resolution was reached faster and at a lower cost than through protracted litigation.
• Compliance with the agreement was higher due to the parents' active involvement in the process.
Conclusion
Mediation has proven to be a valuable and effective tool in safeguarding parental rights while addressing allegations of neglect and abuse in Michigan. It allows for a child-centric approach, promotes the preservation of parent-child relationships, and empowers parents to actively participate in creating solutions that are in the best interests of their children.
—————
Philip A. Schaedler, State Bar of Michigan ADR Section Diversity and Inclusion Action Team Co-Chair: His practice in Tecumseh 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. He is one of 20 SCAO certified trainers in general civil mediation and is certified trainer in restorative conferencing, neglect and abuse mediation and circle keeping. Schaedler has been a licensed member in good standing of the State Bar of Michigan for 40 years and a member of PREMi since its inception.
In the realm of family law, Michigan, like many other states, grapples with the delicate balance between protecting parental rights and ensuring the safety and well-being of children. Cases involving allegations of parental neglect and abuse can be emotionally charged and complex, often culminating in protracted legal battles. To address these challenges and promote more effective resolution, mediation has emerged as a powerful tool in Michigan's family court system. This article explores how mediation benefits parental rights and child protection in neglect and abuse cases, delving into the advantages, principles, and practical implementation of mediation in the state of Michigan.
Understanding the Michigan Family Court System
Before diving into the role of mediation in parental rights, neglect, and abuse cases, it is crucial to comprehend the Michigan family court system. Family court is a specialized court that handles a wide array of family-related matters, including divorce, child custody, visitation, child support, and cases involving allegations of parental neglect and abuse.
In these cases, the primary objective of the court is to safeguard the best interests of the child while respecting parental rights. However, striking the right balance is no easy feat. Allegations of abuse and neglect require careful consideration of the child's safety, the rights of the parents, and the need for a fair and just resolution. Formal proceedings in this context, such as evidentiary hearings, can be extraordinarily harmful to children and the potential for continued constructive relationships between parents. Mediation offers a private and largely confidential process to address these sorts of issues.
The Benefits of Mediation
Mediation, as an alternative dispute resolution (ADR) mechanism, offers numerous advantages in parental rights, neglect, and abuse cases in Michigan:
1. Preservation of Parent-Child Relationships: One of the primary benefits of mediation is that it seeks to preserve the parent-child relationship rather than sever it. In many cases, the removal of a child from their biological family can have profound and lasting effects on the child's well-being. Mediation provides an opportunity for parents to acknowledge the issues, address them, and find a way to maintain a relationship that is conducive to the child's best interests.
2. Empowerment and Self-Determination: Mediation empowers the parties involved in the dispute to make their own decisions. Parents are more likely to comply with agreements reached in mediation because they have actively participated in creating them. This autonomy can lead to more sustainable and cooperative co-parenting arrangements, even in cases where there have been allegations of neglect or abuse.
3. Efficiency and Cost-Effectiveness: Traditional litigation can be time-consuming and expensive. Mediation offers a more cost-effective and efficient means of resolving disputes. This is particularly beneficial in parental rights cases, as it allows for faster resolution and reduced strain on the already stretched resources of child protective services and the legal system.
4. Reduced Emotional Trauma for Children: Courtroom battles can be traumatic for children, especially when they are caught in the crossfire of parental disputes. Mediation takes place in a more relaxed and private setting, making it less intimidating for children. The process encourages a child-centric approach, fostering an environment that is less adversarial and more focused on the child's well-being.
5. Customized Solutions: Every family situation is unique, and mediation allows for customized solutions that can cater to the specific needs and circumstances of the family involved. The mediator helps the parties identify their own priorities and facilitates discussions to tailor solutions accordingly.
6. Self-Determination: Solutions developed by the parties themselves guided by a carefully crafted Case Services Plan are more practical, positive, durable, and productive. This approach allows parents to address their collateral needs and interests. In essence parents are allowed to get “well” before they expected to shoulder the responsibility of parenting.
Mediation Principles in Michigan
To be effective in parental rights, neglect, and abuse cases in Michigan, mediation adheres to certain guiding principles:
1. Neutrality and Impartiality: Mediators are neutral and impartial facilitators who do not take sides in the dispute. Their role is to guide the conversation, ensure each party's voice is heard, and help them reach mutually acceptable solutions.
2. Confidentiality: Michigan law places a high value on the confidentiality of mediation. Information shared during mediation cannot be used in court, ensuring that parties can speak openly without fear of repercussions.
3. Voluntary Participation: Mediation is a voluntary process, meaning that both parties must agree to participate. This voluntary aspect empowers parents and encourages their active engagement in the resolution process.
4. Informed Decision-Making: Mediation is about informed decision-making. Mediators assist parties in understanding their rights, responsibilities, and options so that they can make choices that are informed and in the best interests of their child.
5. Child-Centered Approach: Mediation in Michigan places the best interests of the child at the forefront. Mediators are trained to prioritize the welfare of the child, ensuring that all decisions consider the child's safety and well-being.
6. Inclusivity: Mediation of parental rights, child abuse and neglect cases encourage, where appropriate and permitted, the participation of all the interested parties: parents, attorneys, investigators, case workers, social workers and extended family members or other foster care providers. The dynamics are sometimes rather complicated but the end result provides the kind of support network essential to positive and durable outcomes.
Implementation of Mediation in Michigan
The implementation of mediation in parental rights, neglect, and abuse cases in Michigan involves several steps and considerations:
1. Referral to Mediation: Cases can be referred to mediation at various stages of the child protective process. This can occur before or after a court petition has been filed. Referral sources may include Child Protective Services (CPS), the court, attorneys, or even parents themselves.
2. Mediator Selection: Mediators are usually trained professionals with expertise in family law and conflict resolution. In Michigan, they must adhere to state standards and training requirements. Selection of a mediator is typically done through a court-approved list of qualified professionals.
3. Initial Meeting: Mediation typically begins with an initial meeting in which the mediator explains the process, ground rules, and the importance of confidentiality. Each party is given the opportunity to express their concerns, objectives, and needs.
4. Information Gathering: The mediator facilitates the exchange of information between the parties. This may involve discussing allegations of neglect or abuse, exploring potential solutions, and identifying the child's best interests.
5. Negotiation and Agreement: The heart of mediation is the negotiation process. The mediator helps parties generate options, encourages dialogue, and guides them toward a mutually agreeable solution. Agreements reached in mediation can be incorporated into court orders if necessary.
6. Follow-up and Compliance: After an agreement is reached, follow-up sessions may be scheduled to ensure compliance. Mediators can also help address any new issues that may arise in the future.
7. Court Approval: In some cases, the final agreement may require court approval. The court will assess whether the agreement is in the best interests of the child and may issue a court order based on the mediated agreement.
8. Economics: Approaching parental rights cases through the mediation process in many cases, if not most, allows the court to employ a no cost/low-cost alternatives to the resolution of these matters. Highly skilled, experienced mediators trained to identify domestic violence issues, substance abuse issues and the effects of trauma, among other things, are available through the state’s network of community dispute resolution centers. Mediation can assist the parents, the court, the extended family and responsible agencies in the development of constructive and productive plans for reunification and permanency.
Case Study: The Role of Mediation in a Neglect and Abuse Case
To illustrate how mediation can benefit parental rights and child protection in Michigan, consider the following case:
Case Background: A case is brought to the attention of Child Protective Services (CPS) regarding allegations of neglect and emotional abuse. The parents are separated and have been unable to co-parent effectively. The child, a 9-year-old girl, is displaying behavioral and emotional issues at school.
Mediation Process:
1. Referral to Mediation: CPS seeks the assistance of a mediator through the court The Court refers the case to mediation as a way to resolve the disputes between the parents and address the child's well-being.
2. Mediator Selection: A qualified mediator is appointed from a list of court-approved mediators.
3. Initial Meeting: The mediator meets separately with each parent to explain the process, assure them of confidentiality, and identify their concerns.
4. Information Gathering: In joint sessions, the mediator helps the parents express their concerns, including the alleged neglect and emotional abuse. The child's best interests are discussed, focusing on her need for emotional stability and a healthy relationship with both parents.
5. Negotiation and Agreement: With the mediator's guidance, the parents discuss their issues, concerns, and the possibility of co-parenting more effectively. They create a parenting plan or customize a Case Services Plan that includes specific provisions for communication, visitation, and decision-making. The parents and the agency work together to address collateral issues that must resolved to maximize the potential for success for the parents.
6. Follow-up and Compliance: The mediator schedules follow-up sessions to ensure that the parents are adhering to the agreed-upon plan. Over time, as the parents resolve their personal issues, learn to communicate better and provide a more stable environment for their child, the child's behavior and emotional well-being begins to improve.
7. Court Approval: With the child's well-being at the center, the court approves the mediated parenting plan, making it a legally binding order.
Benefits of Mediation in the Case:
• The child's best interests were prioritized throughout the process.
• The parents were actively engaged in creating a plan that would benefit their child and themselves.
• The child's exposure to further emotional trauma was minimized.
• The resolution was reached faster and at a lower cost than through protracted litigation.
• Compliance with the agreement was higher due to the parents' active involvement in the process.
Conclusion
Mediation has proven to be a valuable and effective tool in safeguarding parental rights while addressing allegations of neglect and abuse in Michigan. It allows for a child-centric approach, promotes the preservation of parent-child relationships, and empowers parents to actively participate in creating solutions that are in the best interests of their children.
—————
Philip A. Schaedler, State Bar of Michigan ADR Section Diversity and Inclusion Action Team Co-Chair: His practice in Tecumseh 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. He is one of 20 SCAO certified trainers in general civil mediation and is certified trainer in restorative conferencing, neglect and abuse mediation and circle keeping. Schaedler has been a licensed member in good standing of the State Bar of Michigan for 40 years and a member of PREMi since its inception.
Award-winner takes art of flip-flopping to new political level
July 11 ,2024
With this column we are pleased (actually sad) to announce another
winner of our coveted (despised) Pence Outstanding Hypocrite Award
(POHA).
:
Berl Falbaum
With this column we are pleased (actually sad) to announce another winner of our coveted (despised) Pence Outstanding Hypocrite Award (POHA).
The honor (dishonor) goes to Nikki Haley, former governor of South Carolina, the last Republican candidate for president to suspend her campaign against Donald Trump in the GOP primaries, and former ambassador to the U.N. during the Trump administration.
Sometimes as we considered bestowing the POHA, we have been hesitant; we did not want to be unfair. But this one was easy, a doozy, a real doozy.
In case you missed it, Haley recently announced she would vote for Trump. So, what’s the big deal, you ask?
Well, we will tell you. Here are some of the things she said about her former boss and rival in the primaries, the man she now wants to be president and the leader of the free world.
Trump, she said, at one point, is “unhinged,” “unsafe to be president,” and “unqualified to be president of the United States.” He was “more diminished” than he was in 2016, she charged.
The GOP must reject Trump as its nominee because he cannot win a general election, she offered, adding, “That’s the problem. We got to go with someone who can actually win.”
If anyone failed to appreciate her opposition to Trump, she assured them that nominating Trump as the GOP candidate for president would be like committing “suicide for our country.”
When she was governor of South Carolina in 2016, she denounced Trump, stating he “was everything a governor does not want in a president.” When Trump won the nomination, she campaigned for him and joined his team as U.N. ambassador.
After January 6, she criticized Trump, saying,
“He let us down. We shouldn’t have followed him…and we should never have listened to him.”
Then she visited him at Mar-a-Lago in Florida, made nice-nice and praised him.
She also has questioned his mental fitness, after Trump confused her with former House Speaker Nancy Pelosi.
“The concern I have is – I’m not saying anything derogatory,” she said while saying something derogatory, “but when you’re dealing with the pressures of a presidency, you can’t have someone else that we question whether they’re mentally fit to do this.”
Asked whether Trump would abide by the Constitution if elected, she said, “I don’t know, I don’t…I don’t know…I mean you always want to think someone will but I don’t know.”
When Trump mocked Haley’s husband, Michael, who serves in the South Carolina Army National Guard, and was on a year-long deployment to Africa as a staff officer with the 218th Maneuver Enhancement Brigade, Haley said:
“If you don’t respect our military, how should we think you’re going to respect them when it comes to times of war, and prevent war and keep them from going? If you don’t have respect for our military and our veterans, God help us all if that’s the case.
“He showed that with that kind of disrespect for the military, he’s not qualified to be the president of the United States, because I don’t trust him to protect them.”
With her endorsement, she apparently also doesn’t remember Trump’s racially-charged comments about her heritage.
Trump repeatedly referred to Haley, the daughter of immigrants from India, as “Nimbra” and suggested, falsely, that disqualified her to run for president.
Haley was born in Bamberg, South Carolina, as Nimarata Nikki Randhawa. She always used her middle name and took the surname “Haley” after her marriage in 1996. In response at the time, Haley said:
“I’ll let people decide what he means by his attacks. What we know is, look, he’s clearly insecure if he goes and does these temper tantrums, if he’s spending millions of dollars on TV. He’s insecure, he knows that something’s wrong.”
But what finally put her over the top for the POHA was how she criticized Republicans who flip-flopped on Trump (before she did.) Here is what she said:
“Many of the same politicians who now publicly embrace Trump privately dread him. They know what a disaster he’s been and will continue to be for our party. They’re just too afraid to say it out loud. Well, I’m not afraid to say the hard truths out loud. I feel no need to kiss the ring.”
If only she had left it at kissing his ring.
Trump’s reaction to all of this? Former GOP presidential rival Haley whom he called a “birdbrain” in the campaign, will be on his team (if he wins the election) in some form --“Absolutely!”
In conclusion: We never had a candidate -- and we have had quite a few -- who deserved the POHA more than Haley.
At the time this was written, Haley had not commented on Trump being found guilty of 34 felonies charges.
But during a presidential debate in the GOP primaries, she was one of six candidates who raised her hand when asked by the moderator if they would support Trump even if he were a convicted felon.
We will speculate (given her record described above): she will laud 17 guilty verdicts and criticize the other 17.
If flip-flopping were an Olympic sport, she would be the favorite for the gold when the Games start this month in Paris.
—————
Berl Falbaum is a long-time journalist and author of several books.
The honor (dishonor) goes to Nikki Haley, former governor of South Carolina, the last Republican candidate for president to suspend her campaign against Donald Trump in the GOP primaries, and former ambassador to the U.N. during the Trump administration.
Sometimes as we considered bestowing the POHA, we have been hesitant; we did not want to be unfair. But this one was easy, a doozy, a real doozy.
In case you missed it, Haley recently announced she would vote for Trump. So, what’s the big deal, you ask?
Well, we will tell you. Here are some of the things she said about her former boss and rival in the primaries, the man she now wants to be president and the leader of the free world.
Trump, she said, at one point, is “unhinged,” “unsafe to be president,” and “unqualified to be president of the United States.” He was “more diminished” than he was in 2016, she charged.
The GOP must reject Trump as its nominee because he cannot win a general election, she offered, adding, “That’s the problem. We got to go with someone who can actually win.”
If anyone failed to appreciate her opposition to Trump, she assured them that nominating Trump as the GOP candidate for president would be like committing “suicide for our country.”
When she was governor of South Carolina in 2016, she denounced Trump, stating he “was everything a governor does not want in a president.” When Trump won the nomination, she campaigned for him and joined his team as U.N. ambassador.
After January 6, she criticized Trump, saying,
“He let us down. We shouldn’t have followed him…and we should never have listened to him.”
Then she visited him at Mar-a-Lago in Florida, made nice-nice and praised him.
She also has questioned his mental fitness, after Trump confused her with former House Speaker Nancy Pelosi.
“The concern I have is – I’m not saying anything derogatory,” she said while saying something derogatory, “but when you’re dealing with the pressures of a presidency, you can’t have someone else that we question whether they’re mentally fit to do this.”
Asked whether Trump would abide by the Constitution if elected, she said, “I don’t know, I don’t…I don’t know…I mean you always want to think someone will but I don’t know.”
When Trump mocked Haley’s husband, Michael, who serves in the South Carolina Army National Guard, and was on a year-long deployment to Africa as a staff officer with the 218th Maneuver Enhancement Brigade, Haley said:
“If you don’t respect our military, how should we think you’re going to respect them when it comes to times of war, and prevent war and keep them from going? If you don’t have respect for our military and our veterans, God help us all if that’s the case.
“He showed that with that kind of disrespect for the military, he’s not qualified to be the president of the United States, because I don’t trust him to protect them.”
With her endorsement, she apparently also doesn’t remember Trump’s racially-charged comments about her heritage.
Trump repeatedly referred to Haley, the daughter of immigrants from India, as “Nimbra” and suggested, falsely, that disqualified her to run for president.
Haley was born in Bamberg, South Carolina, as Nimarata Nikki Randhawa. She always used her middle name and took the surname “Haley” after her marriage in 1996. In response at the time, Haley said:
“I’ll let people decide what he means by his attacks. What we know is, look, he’s clearly insecure if he goes and does these temper tantrums, if he’s spending millions of dollars on TV. He’s insecure, he knows that something’s wrong.”
But what finally put her over the top for the POHA was how she criticized Republicans who flip-flopped on Trump (before she did.) Here is what she said:
“Many of the same politicians who now publicly embrace Trump privately dread him. They know what a disaster he’s been and will continue to be for our party. They’re just too afraid to say it out loud. Well, I’m not afraid to say the hard truths out loud. I feel no need to kiss the ring.”
If only she had left it at kissing his ring.
Trump’s reaction to all of this? Former GOP presidential rival Haley whom he called a “birdbrain” in the campaign, will be on his team (if he wins the election) in some form --“Absolutely!”
In conclusion: We never had a candidate -- and we have had quite a few -- who deserved the POHA more than Haley.
At the time this was written, Haley had not commented on Trump being found guilty of 34 felonies charges.
But during a presidential debate in the GOP primaries, she was one of six candidates who raised her hand when asked by the moderator if they would support Trump even if he were a convicted felon.
We will speculate (given her record described above): she will laud 17 guilty verdicts and criticize the other 17.
If flip-flopping were an Olympic sport, she would be the favorite for the gold when the Games start this month in Paris.
—————
Berl Falbaum is a long-time journalist and author of several books.
Delusion becomes fact in the political world of a modern era G.O.P. ‘dictator’
July 04 ,2024
This is the fourth commentary in a series examining Niccolo
Machiavelli’s analysis of challenges facing free governments, past and
present, and his admonitions regarding the steps needed to preserve
critical institutions.
:
Samuel Damren
This is the fourth commentary in a series examining Niccolo Machiavelli’s analysis of challenges facing free governments, past and present, and his admonitions regarding the steps needed to preserve critical institutions.
The previous commentary discussed the “office of dictator” in ancient Rome.
The Roman Republic actually had such an office, but it was extremely limited in scope and duration; only put in place to respond to substantial and imminent threats when traditional political institutions were unable to do so.
When the threat was removed, the dictator stepped down and returned the Republic to its prior good order. At least that was the model, according to Machiavelli, until Julius Caesar abused the office by leading an army with allegiance to him to threaten violence in the heart of the Republic thereby ending free government in ancient Rome.
The previous commentary concluded noting Donald Trump’s statement in a Fox News town hall meeting in April that he wanted to be “dictator for a day” after his possible election as President this November. He later “walked the comment back” in a Time Magazine interview saying the comment was a “joke.”
The subject of this commentary poses the follow-up question: If not as future dictator, what role does Trump occupy in current politics and is there any parallel to that role in political history?
Trump is certainly not a “role model” even to supporters. On the eve of the Iowa caucuses, a middle-age Iowa woman, interviewed by an AP reporter, laughingly said that while she supported Trump, “I wouldn’t vote for him as my pastor.”
There are likely a substantial number of responsible roles that other supporters would also not want Trump to fill in their personal lives.
Notwithstanding, supporters enthusiastically embrace his “no holds barred” and “anything goes” approach to political practice, including incitements to violence which they discount because it is not aimed at them.
Before Trump, a person with these flaws would have been automatically disqualified from any political role in America. Those same flaws, however, would not be in the slightest disqualifying in 16th century Italy if the role in question was that of mercenary.
Mercenaries or “condottieri” occupied a prominent position in the political structure of the time. The five major city states (Florence, Milan, Naples, Rome and Venice) all hired mercenaries to initiate and defend periodic, but repeated, military advances against one another.
Machiavelli railed against their role in Italian politics believing they brought ruin to the legitimate interests of the populace at large and the city states in particular. His critique of their injurious effect was threefold.
First, by definition, mercenaries are “men without any territory.” As a result, they owe allegiance only to themselves and view the world from that vantage. Their leaders mistrust everyone. They conspire against supposed friends, allies, and employers; and, believe others continually conspire against them.
If it is to their advantage, mercenaries shift allegiance or undercut alliances formed by their employers without hesitation.
Second, mercenaries are only paid in times of war. As a result, they encourage and prolong division among employing city states and foreign interests in lieu of pursuing peace.
Their greatest source of funds is through plunder from the sacking the territories of adversaries. They can be bribed and also extort employers and the citizenry if that is to better advantage and less risky.
Third, by practicing only the “Art of War,” mercenaries have no knowledge or experience in governing except by bullying, threats, and violence.
Mercenaries are ruthless and cruel. They demand absolute loyalty from troops upon penalty of exile or a gruesome death. When unchecked, they rule as tyrants.
Donald Trump is the portrait of the modern-day political mercenary.
He reduced the Republican Party from a democratic institution to mercenary troops who either support him, are expelled, or confront “political death.” RNC funds have become his personal plunder.
As President and candidate, Trump extorts or connives with foreign powers to provide dirt on domestic opponents. He continually churns division in our body politic to prevent the possibility of peaceful resolution.
As all mercenaries do, Trump schemes. He overlays conspiracy upon conspiracy in a form of destructive paranoia that leads him to proclaim delusion as fact.
Five hundred years ago, Machiavelli reviewed the aftermath of a political world of free government broken by the princes and mercenaries of Italy.
It is that same world Donald Trump now offers to America.
—————
Samuel Damren is an attorney and author in Ann Arbor.
The previous commentary discussed the “office of dictator” in ancient Rome.
The Roman Republic actually had such an office, but it was extremely limited in scope and duration; only put in place to respond to substantial and imminent threats when traditional political institutions were unable to do so.
When the threat was removed, the dictator stepped down and returned the Republic to its prior good order. At least that was the model, according to Machiavelli, until Julius Caesar abused the office by leading an army with allegiance to him to threaten violence in the heart of the Republic thereby ending free government in ancient Rome.
The previous commentary concluded noting Donald Trump’s statement in a Fox News town hall meeting in April that he wanted to be “dictator for a day” after his possible election as President this November. He later “walked the comment back” in a Time Magazine interview saying the comment was a “joke.”
The subject of this commentary poses the follow-up question: If not as future dictator, what role does Trump occupy in current politics and is there any parallel to that role in political history?
Trump is certainly not a “role model” even to supporters. On the eve of the Iowa caucuses, a middle-age Iowa woman, interviewed by an AP reporter, laughingly said that while she supported Trump, “I wouldn’t vote for him as my pastor.”
There are likely a substantial number of responsible roles that other supporters would also not want Trump to fill in their personal lives.
Notwithstanding, supporters enthusiastically embrace his “no holds barred” and “anything goes” approach to political practice, including incitements to violence which they discount because it is not aimed at them.
Before Trump, a person with these flaws would have been automatically disqualified from any political role in America. Those same flaws, however, would not be in the slightest disqualifying in 16th century Italy if the role in question was that of mercenary.
Mercenaries or “condottieri” occupied a prominent position in the political structure of the time. The five major city states (Florence, Milan, Naples, Rome and Venice) all hired mercenaries to initiate and defend periodic, but repeated, military advances against one another.
Machiavelli railed against their role in Italian politics believing they brought ruin to the legitimate interests of the populace at large and the city states in particular. His critique of their injurious effect was threefold.
First, by definition, mercenaries are “men without any territory.” As a result, they owe allegiance only to themselves and view the world from that vantage. Their leaders mistrust everyone. They conspire against supposed friends, allies, and employers; and, believe others continually conspire against them.
If it is to their advantage, mercenaries shift allegiance or undercut alliances formed by their employers without hesitation.
Second, mercenaries are only paid in times of war. As a result, they encourage and prolong division among employing city states and foreign interests in lieu of pursuing peace.
Their greatest source of funds is through plunder from the sacking the territories of adversaries. They can be bribed and also extort employers and the citizenry if that is to better advantage and less risky.
Third, by practicing only the “Art of War,” mercenaries have no knowledge or experience in governing except by bullying, threats, and violence.
Mercenaries are ruthless and cruel. They demand absolute loyalty from troops upon penalty of exile or a gruesome death. When unchecked, they rule as tyrants.
Donald Trump is the portrait of the modern-day political mercenary.
He reduced the Republican Party from a democratic institution to mercenary troops who either support him, are expelled, or confront “political death.” RNC funds have become his personal plunder.
As President and candidate, Trump extorts or connives with foreign powers to provide dirt on domestic opponents. He continually churns division in our body politic to prevent the possibility of peaceful resolution.
As all mercenaries do, Trump schemes. He overlays conspiracy upon conspiracy in a form of destructive paranoia that leads him to proclaim delusion as fact.
Five hundred years ago, Machiavelli reviewed the aftermath of a political world of free government broken by the princes and mercenaries of Italy.
It is that same world Donald Trump now offers to America.
—————
Samuel Damren is an attorney and author in Ann Arbor.
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