6.4Alternative Dispute Resolution

“All civil cases are subject to alternative dispute resolution processes unless otherwise provided by statute or court rule.” MCR 2.410(A)(1). Courts that use ADR pursuant to MCR 2.410 must develop an ADR plan by local administrative order and must meet the requirements of MCR 2.410(B). MCR 2.410(B)(1). “The chief judge shall exercise general supervision over the implementation of [MCR 2.410] and shall review the operation of the court’s ADR plan at least annually to assure compliance with [MCR 2.410].” MCR 2.410(F).

“At any time, after consultation with the parties, the court may order that a case be submitted to an appropriate ADR process.” MCR 2.410(C)(1). Unless the rule under which the case was referred provides otherwise, the order must provide for the selection and payment of the ADR provider and set time limits for initiation and completion of the process. MCR 2.410(C)(2). In addition, the court may order other provisions as it considers appropriate, and the order may require attendance at ADR proceedings as provided in MCR 2.410(D). MCR 2.410(C)(2); MCR 2.410(3). A party may object to the court’s decision to refer the case to ADR by filing a motion within 14 days after the order referring the case was entered. MCR 2.410(E). Attorneys, parties, and representatives of lienholders or insurance carriers can be required to attend or be available at the time of the ADR proceedings and have adequate information and authority “for responsible and effective participation in the conference for all purposes[.]” MCR 2.410(D). The court may allow the entity to appear by telephone. Id.

Failure to attend an ADR proceeding, as ordered, may result in a default or dismissal of the action. MCR 2.410(D)(3)(a). However, the court must excuse a failure to attend and enter a just order other than a default or dismissal upon a finding that manifest injustice would occur if a default or dismissal is ordered, or that “the failure to attend was not due to the culpable negligence of the party or the party’s attorney.” MCR 2.410(D)(3)(b). “The court may condition the order on the payment by the offending party or attorney of reasonable expenses as provided in MCR 2.313(B)(2).” MCR 2.410(D)(3).

“In a case in which a discovery plan has been filed with the court under MCR 2.401(C),^[1] an included stipulation to use an ADR process other than case evaluation^[2] must:

(a) identify the ADR process to be used;

(b) describe the timing of the ADR process in relation to other discovery provisions; and

(c) state that the ADR process be completed no later than 60 days after the close of discovery.” MCR 2.403(A)(2).

“In a case in which no discovery plan has been filed with the court, a stipulated order to use an ADR process other than case evaluation must:

(a) be submitted to the court within 120 days of the first responsive pleading;

(b) identify the ADR process to be used and its timing in relationship to the deadlines for completion of disclosure and discovery; and

(c) state that the ADR process be completed no later than 60 days after the close of discovery.” MCR 2.403(A)(3).

“Parties who participate in a stipulated ADR process approved by the court may not subsequently be ordered to participate in case evaluation without their written consent.” MCR 2.403(A)(1).

Parties may also agree to a collaborative alternative dispute process. See Section 6.7.