Mediation is the 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.” MCR 2.411(A)(2).
A mediator may be selected by the parties or by the court using an established selection process. See MCR 2.411(B)(1); MCR 2.411(B)(3). If the court selects the mediator, the individual must satisfy the minimum qualifications set forth in MCR 2.411(F). However, a mediator selected by agreement of the parties need not meet these minimum qualifications. MCR 2.411(B)(1).
If the mediation order does not specify a mediator, the order must set a deadline by which the parties are to agree upon a mediator. MCR 2.411(B)(2). If the parties select a mediator, the court must appoint that mediator unless he or she is unable to serve during the scheduled time frame. MCR 2.411(B)(1). If the parties do not agree on a mediator, one will be selected by the court from the approved list of mediators as set forth in MCR 2.411(B)(3). MCR 2.411(B)(2).
Generally, the court must not appoint, recommend, direct, or otherwise influence the selection of a mediator other than as provided by MCR 2.411. MCR 2.411(B)(4). However, “[t]he court may recommend or advise parties on the selection of a mediator only upon request of all parties by stipulation in writing or orally on the record.” Id.
Mediators are subject to the same disqualification rules as a judge. MCR 2.411(B)(5).
2.Scheduling and Conduct of Mediation
“The order referring the case for mediation shall specify the time within which the mediation is to be completed.” MCR 2.411(C)(1). The court’s ADR clerk must send a copy of the order to each party and the selected mediator. Id. Multiple mediation sessions can be held if it appears that the process is moving toward settlement. MCR 2.411(C)(2). Within 7 days of completing mediation, the mediator must notify the court only of the following information: (1) the date the process was completed; (2) who participated in the process; (3) whether a settlement was reached; and (4) whether additional ADR proceedings have been contemplated. MCR 2.411(C)(3). If settlement is reached, the parties must prepare and submit the appropriate documents to the court within 21 days. MCR 2.411(C)(4).
“Mediation communications are confidential. They are not subject to discovery, are not admissible in a proceeding, and may not be disclosed to anyone other than mediation participants except as provided in [MCR 2.412(D)].” MCR 2.412(C). “Evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its disclosure or use in a mediation.” MCR 2.412(E)(3).
“The term ‘mediation communications’ is defined expansively to include statements that ‘occur during the mediation process’ as well as statements that ‘are made for purposes of . . . preparing for . . . a mediation.’ MCR 2.412(B)(2).” Tyler v Findling, 508 Mich 364, 371 (2021) (alterations in original). There is no requirement that “a mediator . . . meet with the parties and attorneys before the definition of ‘mediation communications’ under MCR 2.412(B)(2) and the mediation confidentiality provision set forth in MCR 2.412(C) both attach.” Tyler, 508 Mich at 371. “The confidentiality protections cover ‘[m]ediation communications,’ MCR 2.412(C), which are not limited to communications made by a ‘mediation party’ but extend to, among other things, any statement ‘made for purposes of . . . participating in . . . a mediation.’ MCR 2.412(B)(2). This clearly encompasses statements made by a ‘mediation participant.’” Tyler, 508 Mich at 372 (alterations in original). “[T]here is no requirement in MCR 2.412 that a ‘mediation communication’ be uttered by any particular party or participant. Rather, the rule simply explains to whom confidential mediation communications can be disclosed. All mediation communications made by participants are afforded confidentiality protections.” Tyler, 508 Mich at 371-372 (concluding that a conversation between attorneys that “took place within the mediator’s designated ‘plaintiff’s room’ while parties to the mediation were waiting for the mediation session to start . . . [was] part of the ‘mediation process’”).
Unless the parties agree, or the court orders otherwise, the costs of mediation must be divided between the parties on a pro-rata basis. MCR 2.411(D)(2). The mediator’s fee must be paid no later than 42 days after mediation is concluded or a dismissal or judgment is entered, whichever occurs first. Id. The court may modify the payment deadline if the mediator consents. MCR 2.411(D)(3). An order to enforce payment of the fee as a cost of the action may be entered by the court. MCR 2.411(D)(4). If a party objects to the total fee, a hearing may be held by the court to determine the reasonableness of the fee. MCR 2.411(D)(5).
B.Domestic Relations Mediation
“All domestic relations cases . . . and actions for divorce and separate maintenance that involve the distribution of property are subject to mediation under [MCR 3.216], unless otherwise provided by statute or court rule.” MCR 3.216(A)(1). Domestic relations mediation is nonbinding, but if the parties and mediator agree, “the mediator may provide a written recommendation for settlement of any issues that remain unresolved at the conclusion of a mediation proceeding.” MCR 3.216(A)(2).
Child protection mediation is governed by MCR 3.970. See the Michigan Judicial Institute’s Child Protective Proceedings Benchbook, Chapter 7, for additional information on child protection mediation.
D.Mediation of Discovery Disputes
If a discovery dispute arises, the dispute may be mediated upon stipulation of the parties or order of the court. MCR 2.411(H). See Section 5.1(H) for information on mediation of discovery disputes.