MEDIATION

There has been a national trend towards the facilitative mediation of civil disputes.  In Michigan, mediation became formalized on August 1, 2000 with the adoption of a court rule that set forth alternative dispute resolution, and specifically mediation, as a part of "all civil cases . . . unless otherwise provided by statute or court rule."

In contrast to case evaluation, which is an evaluative process, mediation is a facilitative process in which an independent mediator helps parties reach a mutually satisfactory resolution of their dispute.  The court rules define mediation as "a process in which a neutral third party facilitates communication between parties, assists in identifying issues, and helps explore solutions to promote a mutually acceptable settlement.  A mediator has no authoritative decision-making power."

1. Allows the parties to directly participate in the resolution of their dispute.
2. The parties can express their feelings to the opponent and/or a neutral party in a confidential setting.
3. Mediation does not impose a result upon the parties.  Instead, the participants have input into a resolution that is satisfactory to all parties, with no penalties or sanctions if the case is not settled.
4. Mediation can be utilized at any stage in litigation or even before litigation is started.
5. Even if mediation is unsuccessful, it brings the settlement negotiations to the forefront and allows parties to know in a day or so whether the case can be settled or whether they need to get ready for trial.
6. Mediation allows the parties to discuss and agree on possible settlement terms that cannot otherwise be obtained through the litigation process.  In mediation, the parties can discuss things that are frequently overlooked in litigation that can make a difference in settlement negotiations because often they can be of value to one party without an economic cost to the other. 

The purpose of mediation in family law is to keep private a painful episode in the parties' lives and to provide a way to avoid the delays, expense, and trauma that often occurs during traditional courtroom litigation.

Michigan's special rule for domestic relations mediation encourages mediation of all domestic relations issues, including post-judgment matters.  Typically, mediation under the rule continues until a settlement is reached or it is apparent that the parties are unable to settle.  Any agreements reached in family law mediation is handled like other settlements in which the parties have to take steps to put the terms of the settlement into a judgment or court order.  In addition, the rule gives the parties the option of having the mediator provide a written recommendation for any issues that remain unresolved.  The report is for the parties only and may not be submitted or made available to the court.  This procedure is known as evaluative mediation.