Philip Schaedler
Mediation
Mediation is a voluntary and non-binding process that involves the assistance of a neutral third party, the mediator, to facilitate communication and negotiations between disputing parties. It is widely used in domestic relations cases in Michigan, such as divorce, child custody, spousal support, and property division disputes. Mediation can be court-ordered or initiated by the parties themselves.
1. Mediation
In Michigan, the mediation process typically follows these steps:
1. Initial Meeting: Parties meet with the mediator to establish ground rules, clarify the process, and express their goals and concerns.
2. Information Gathering: Each party provides relevant information, such as financial records or custody arrangements, to the mediator.
3. Joint Sessions: Parties come together in the presence of the mediator to discuss their issues, explore options, and negotiate settlements.
4. Separate Sessions: If needed, the mediator may hold private caucus meetings with each party to discuss sensitive issues or facilitate compromise.
5. Agreement: If an agreement is reached, it is drafted, reviewed, and signed by the parties.
6. Submission to Court: If the parties are represented by attorneys, the agreement is submitted to the court for approval and becomes a legally binding court order upon approval.
Benefits
1. Cost-Effective: Mediation is often more affordable than litigation, reducing legal fees and court costs.
2. Faster Resolution: Mediation typically proceeds more quickly than court proceedings, allowing parties to reach a resolution sooner.
3. Control Over the Outcome: Parties have more control and autonomy in crafting their own solutions rather than having decisions imposed by a judge.
4. Preservation of Relationships: Mediation are less adversarial, helping to promote productive communication and maintain better post-divorce relationships, which is crucial when children are involved.
5. Confidentiality: Mediation proceedings are confidential, which protects privacy; statements made during the process are generally not admissible in court.
6. Flexibility: Mediation can address specific issues, making it a versatile process for a variety of domestic relations disputes. Even if the case does not fully resolve in mediation, the parties can reach partial agreement on significant issues.
Limitations
1. Voluntary Participation: Mediation requires the willingness of both parties to participate. If one party is unwilling, mediation generally is not a viable option.
2. No Guarantee of Agreement: Mediation does not guarantee that an agreement will be reached, and parties may still end up in court if they cannot resolve their issues through mediation.
3. Lack of Legal Advice: Mediators do not provide legal advice, so it is often recommended that parties consult with attorneys before, during and after the mediation process.
4. Imbalance of Power: In some cases, there may be a significant power imbalance between the parties, making it challenging to achieve a fair agreement.
Regulatory Framework
Mediation in Michigan is subject to regulation and oversight by the courts. Court-connected mediation programs are common, and some jurisdictions mandate parties to attend mediation sessions before pursuing litigation. These programs ensure mediators are qualified and maintain high ethical standards.
Additionally, Michigan has specific rules regarding child custody mediation, often a critical aspect of domestic relations cases. Custody mediators must meet certain qualifications and adhere to a code of ethics.
The Michigan regulatory framework applicable to domestic relations mediation can be found in MCL 552.513; MCL 600.1035; mcr 2.411 and MCR 3.216. The Michigan Supreme Court through the Office of Dispute Resolution of the State Court Administrator’s Office has published Michigan’s Mediator Standards of Conduct.
2. Collaborative Law
The collaborative law process in Michigan typically involves the following steps:
1. Agreement to Collaborate: Both parties and their respective attorneys must sign a participation agreement committing to the collaborative process and agreeing not to pursue litigation while it is ongoing.
2. Team Approach: The collaborative team may include attorneys, financial professionals, and mental health experts, depending on the specific needs of the case.
3. Meetings and Negotiation: The parties and their collaborative team meet to discuss their concerns, interests, and objectives. They work together to negotiate a fair and comprehensive resolution.
4. Disclosure and Transparency: Parties are encouraged to be open and transparent, sharing all necessary financial and other information to facilitate negotiations.
5. Resolution: Once all issues are addressed and an agreement is reached, the parties can submit their settlement to the court for approval, making it a legally binding court order.
6. Termination of Collaboration: If the collaborative process breaks down, and parties decide to pursue litigation, they must retain new attorneys.
Benefits
1. Empowerment: Parties have control over the process and actively participate in shaping their own agreements with guidance from experienced family law attorneys.
2. Privacy: Collaborative proceedings are private and confidential, ensuring that personal matters remain out of the public eye.
3. Reduction of Conflict: The non-adversarial nature of collaborative law often leads to reduced conflict and better post-divorce relationships, which is especially important when children are involved.
4. Customization: The collaborative process allows for creative and customized solutions tailored to the unique circumstances of each case.
5. Efficiency: Collaborative law can lead to faster and more efficient resolutions compared to court litigation.
Limitations
1. Mutual Agreement: The process requires the voluntary participation and mutual agreement of both parties. If one party is unwilling or uncooperative, collaboration may not be an option.
2. Attorney Withdrawal: If the collaborative process fails, and the case proceeds to litigation, the attorneys who participated in the collaboration must withdraw from the case. New attorneys will need to be retained, which can increase costs.
3. Not Suitable for All Cases: Collaborative law is not always suitable for high-conflict or extremely complex cases where a judge's intervention may be necessary.
Regulatory Framework
Michigan has established rules and guidelines for collaborative law, primarily through court rules and local practice standards. It is important for attorneys and parties involved in collaborative law cases to be familiar with these rules and ensure that they comply with the requirements.
While collaborative law offers significant flexibility, parties must still seek court approval for their final agreement to ensure it aligns with the law and the best interests of any children involved.
The Michigan regulatory framework applicable to Collaborative law is found in MCL 691.1332 the Michigan Uniform Collaborative Law Act and MRC 3.222 and MCR 3.223 (this rule does not apply to collaborative divorce perse but governs summary proceedings for entry of consent judgments or orders which in many cases is an integral part of a collaborative approach to domestic relations disputes. An excellent primer on collaborative process and consent judgments can be found in the April 5, 2021, issue of Connections the newsletter of the Michigan State Court Administrative Office
3. Arbitration
Arbitration in Michigan generally follows these key steps:
1. Agreement to Arbitrate: Parties must agree to submit their dispute to arbitration. This agreement may be voluntary, part of a prenuptial agreement, a post-divorce settlement agreement, or a court order.
2. Selection of Arbitrator: Parties can either agree on an arbitrator or rely on an established arbitration organization to appoint one.
3. Preliminary Hearings: The arbitrator may hold preliminary hearings to establish ground rules, define the issues to be arbitrated, and set timelines.
4. Arbitration Proceedings: Each party presents their case, including evidence and witnesses, before the arbitrator. The arbitrator may allow for cross-examination and legal representation.
5. Decision: The arbitrator issues a final, binding decision, often referred to as an award.
6. Enforcement: The arbitration award is enforceable through the courts and is treated as a legally binding judgment.
Benefits
1. Speed and Efficiency: Arbitration proceedings are generally faster than court litigation, providing quicker resolutions.
2. Customization: Parties can choose their arbitrator and establish their own rules and procedures, allowing for a more tailored process. They may agree to limit discovery, present a limited number of witnesses, allow experts to hear other experts’ testimony, etc.
3. Privacy: Arbitration proceedings are private and confidential, as opposed to court hearings that are generally open to the public.
4. Expertise: Parties can select an arbitrator with specific expertise in family law, ensuring a knowledgeable decision-maker.
5. Finality: Arbitration awards are typically final and less susceptible to lengthy appeals, reducing prolonged legal battles.
Limitations
1. Costs: The expenses associated with arbitration, including arbitrator fees, can be substantial, especially if the process becomes protracted. Parties must pay for an arbitrator, whereas judges are paid with public funds.
2. Finality: The finality of arbitration awards means there is limited room for correcting mistakes or addressing unforeseen issues.
3. Lack of Precedent: Arbitration awards do not create legal precedent, making them less predictable for future cases.
4. Potential for Unfairness: If one party is less financially or legally savvy, they may feel at a disadvantage in arbitration.
Regulatory Framework
Michigan has comprehensive rules governing arbitration in domestic relations cases. The Michigan Court Rules outline the procedures for domestic relations arbitration and the appointment of arbitrators.
Courts have the authority to confirm, vacate, or modify arbitration awards, which ensures that the process remains within the bounds of the law.
In custody cases, Michigan requires that arbitration be conducted by a licensed attorney, which sets a high standard for the qualifications of arbitrators. This helps to maintain the integrity and fairness of the process, particularly when the welfare of children is at stake.
Those considering the use of arbitration in the domestic relations context should be familiar with Michigan’s Uniform Arbitration Act, MCL 691.1681 which addresses arbitration generally, Chapter 50B of the Revised Judicature Act, MCL 600.5070, which provides specific regulation of domestic relations arbitration; and MCR 3.602, Arbitration.
Philip A. Schaedler is the State Bar of Michigan ADR Section Diversity and InclusionAction 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.
Mediation
Mediation is a voluntary and non-binding process that involves the assistance of a neutral third party, the mediator, to facilitate communication and negotiations between disputing parties. It is widely used in domestic relations cases in Michigan, such as divorce, child custody, spousal support, and property division disputes. Mediation can be court-ordered or initiated by the parties themselves.
1. Mediation
In Michigan, the mediation process typically follows these steps:
1. Initial Meeting: Parties meet with the mediator to establish ground rules, clarify the process, and express their goals and concerns.
2. Information Gathering: Each party provides relevant information, such as financial records or custody arrangements, to the mediator.
3. Joint Sessions: Parties come together in the presence of the mediator to discuss their issues, explore options, and negotiate settlements.
4. Separate Sessions: If needed, the mediator may hold private caucus meetings with each party to discuss sensitive issues or facilitate compromise.
5. Agreement: If an agreement is reached, it is drafted, reviewed, and signed by the parties.
6. Submission to Court: If the parties are represented by attorneys, the agreement is submitted to the court for approval and becomes a legally binding court order upon approval.
Benefits
1. Cost-Effective: Mediation is often more affordable than litigation, reducing legal fees and court costs.
2. Faster Resolution: Mediation typically proceeds more quickly than court proceedings, allowing parties to reach a resolution sooner.
3. Control Over the Outcome: Parties have more control and autonomy in crafting their own solutions rather than having decisions imposed by a judge.
4. Preservation of Relationships: Mediation are less adversarial, helping to promote productive communication and maintain better post-divorce relationships, which is crucial when children are involved.
5. Confidentiality: Mediation proceedings are confidential, which protects privacy; statements made during the process are generally not admissible in court.
6. Flexibility: Mediation can address specific issues, making it a versatile process for a variety of domestic relations disputes. Even if the case does not fully resolve in mediation, the parties can reach partial agreement on significant issues.
Limitations
1. Voluntary Participation: Mediation requires the willingness of both parties to participate. If one party is unwilling, mediation generally is not a viable option.
2. No Guarantee of Agreement: Mediation does not guarantee that an agreement will be reached, and parties may still end up in court if they cannot resolve their issues through mediation.
3. Lack of Legal Advice: Mediators do not provide legal advice, so it is often recommended that parties consult with attorneys before, during and after the mediation process.
4. Imbalance of Power: In some cases, there may be a significant power imbalance between the parties, making it challenging to achieve a fair agreement.
Regulatory Framework
Mediation in Michigan is subject to regulation and oversight by the courts. Court-connected mediation programs are common, and some jurisdictions mandate parties to attend mediation sessions before pursuing litigation. These programs ensure mediators are qualified and maintain high ethical standards.
Additionally, Michigan has specific rules regarding child custody mediation, often a critical aspect of domestic relations cases. Custody mediators must meet certain qualifications and adhere to a code of ethics.
The Michigan regulatory framework applicable to domestic relations mediation can be found in MCL 552.513; MCL 600.1035; mcr 2.411 and MCR 3.216. The Michigan Supreme Court through the Office of Dispute Resolution of the State Court Administrator’s Office has published Michigan’s Mediator Standards of Conduct.
2. Collaborative Law
The collaborative law process in Michigan typically involves the following steps:
1. Agreement to Collaborate: Both parties and their respective attorneys must sign a participation agreement committing to the collaborative process and agreeing not to pursue litigation while it is ongoing.
2. Team Approach: The collaborative team may include attorneys, financial professionals, and mental health experts, depending on the specific needs of the case.
3. Meetings and Negotiation: The parties and their collaborative team meet to discuss their concerns, interests, and objectives. They work together to negotiate a fair and comprehensive resolution.
4. Disclosure and Transparency: Parties are encouraged to be open and transparent, sharing all necessary financial and other information to facilitate negotiations.
5. Resolution: Once all issues are addressed and an agreement is reached, the parties can submit their settlement to the court for approval, making it a legally binding court order.
6. Termination of Collaboration: If the collaborative process breaks down, and parties decide to pursue litigation, they must retain new attorneys.
Benefits
1. Empowerment: Parties have control over the process and actively participate in shaping their own agreements with guidance from experienced family law attorneys.
2. Privacy: Collaborative proceedings are private and confidential, ensuring that personal matters remain out of the public eye.
3. Reduction of Conflict: The non-adversarial nature of collaborative law often leads to reduced conflict and better post-divorce relationships, which is especially important when children are involved.
4. Customization: The collaborative process allows for creative and customized solutions tailored to the unique circumstances of each case.
5. Efficiency: Collaborative law can lead to faster and more efficient resolutions compared to court litigation.
Limitations
1. Mutual Agreement: The process requires the voluntary participation and mutual agreement of both parties. If one party is unwilling or uncooperative, collaboration may not be an option.
2. Attorney Withdrawal: If the collaborative process fails, and the case proceeds to litigation, the attorneys who participated in the collaboration must withdraw from the case. New attorneys will need to be retained, which can increase costs.
3. Not Suitable for All Cases: Collaborative law is not always suitable for high-conflict or extremely complex cases where a judge's intervention may be necessary.
Regulatory Framework
Michigan has established rules and guidelines for collaborative law, primarily through court rules and local practice standards. It is important for attorneys and parties involved in collaborative law cases to be familiar with these rules and ensure that they comply with the requirements.
While collaborative law offers significant flexibility, parties must still seek court approval for their final agreement to ensure it aligns with the law and the best interests of any children involved.
The Michigan regulatory framework applicable to Collaborative law is found in MCL 691.1332 the Michigan Uniform Collaborative Law Act and MRC 3.222 and MCR 3.223 (this rule does not apply to collaborative divorce perse but governs summary proceedings for entry of consent judgments or orders which in many cases is an integral part of a collaborative approach to domestic relations disputes. An excellent primer on collaborative process and consent judgments can be found in the April 5, 2021, issue of Connections the newsletter of the Michigan State Court Administrative Office
3. Arbitration
Arbitration in Michigan generally follows these key steps:
1. Agreement to Arbitrate: Parties must agree to submit their dispute to arbitration. This agreement may be voluntary, part of a prenuptial agreement, a post-divorce settlement agreement, or a court order.
2. Selection of Arbitrator: Parties can either agree on an arbitrator or rely on an established arbitration organization to appoint one.
3. Preliminary Hearings: The arbitrator may hold preliminary hearings to establish ground rules, define the issues to be arbitrated, and set timelines.
4. Arbitration Proceedings: Each party presents their case, including evidence and witnesses, before the arbitrator. The arbitrator may allow for cross-examination and legal representation.
5. Decision: The arbitrator issues a final, binding decision, often referred to as an award.
6. Enforcement: The arbitration award is enforceable through the courts and is treated as a legally binding judgment.
Benefits
1. Speed and Efficiency: Arbitration proceedings are generally faster than court litigation, providing quicker resolutions.
2. Customization: Parties can choose their arbitrator and establish their own rules and procedures, allowing for a more tailored process. They may agree to limit discovery, present a limited number of witnesses, allow experts to hear other experts’ testimony, etc.
3. Privacy: Arbitration proceedings are private and confidential, as opposed to court hearings that are generally open to the public.
4. Expertise: Parties can select an arbitrator with specific expertise in family law, ensuring a knowledgeable decision-maker.
5. Finality: Arbitration awards are typically final and less susceptible to lengthy appeals, reducing prolonged legal battles.
Limitations
1. Costs: The expenses associated with arbitration, including arbitrator fees, can be substantial, especially if the process becomes protracted. Parties must pay for an arbitrator, whereas judges are paid with public funds.
2. Finality: The finality of arbitration awards means there is limited room for correcting mistakes or addressing unforeseen issues.
3. Lack of Precedent: Arbitration awards do not create legal precedent, making them less predictable for future cases.
4. Potential for Unfairness: If one party is less financially or legally savvy, they may feel at a disadvantage in arbitration.
Regulatory Framework
Michigan has comprehensive rules governing arbitration in domestic relations cases. The Michigan Court Rules outline the procedures for domestic relations arbitration and the appointment of arbitrators.
Courts have the authority to confirm, vacate, or modify arbitration awards, which ensures that the process remains within the bounds of the law.
In custody cases, Michigan requires that arbitration be conducted by a licensed attorney, which sets a high standard for the qualifications of arbitrators. This helps to maintain the integrity and fairness of the process, particularly when the welfare of children is at stake.
Those considering the use of arbitration in the domestic relations context should be familiar with Michigan’s Uniform Arbitration Act, MCL 691.1681 which addresses arbitration generally, Chapter 50B of the Revised Judicature Act, MCL 600.5070, which provides specific regulation of domestic relations arbitration; and MCR 3.602, Arbitration.
Philip A. Schaedler is the State Bar of Michigan ADR Section Diversity and InclusionAction 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.
