Rule 3.216 - Domestic Relations Mediation(A) Scope and Applicability of Rule, Definitions.(1) All domestic relations cases, as defined in MCL 552.502(m),
and actions for divorce and separate maintenance that involve the
distribution of property are subject to mediation under this rule,
unless otherwise provided by statute or court rule.(2)
Domestic relations mediation is a nonbinding process in which a neutral
third party facilitates communication between parties to promote
settlement. If the parties so request, and the mediator agrees to do so,
the mediator may provide a written recommendation for settlement of any
issues that remain unresolved at the conclusion of a mediation
proceeding. This procedure, known as evaluative mediation, is governed
by subrule (I).(3) This rule does not restrict the Friend of the Court from enforcing custody, parenting time, and support orders.(4) The court may order, on stipulation of the parties, the use of other settlement procedures.(B)
Mediation Plan. Each trial court that submits domestic relations cases
to mediation under this rule shall include in its alternative dispute
resolution plan adopted under MCR 2.410(B)
provisions governing selection of domestic relations mediators, and for
providing parties with information about mediation in the family
division as soon as reasonably practical.(C) Referral to Mediation.(1)
On written stipulation of the parties, on written motion of a party, or
on the court's initiative, the court may submit to mediation by written
order any contested issue in a domestic relations case, including
postjudgment matters.(2) The court may not submit contested issues to evaluative mediation unless all parties so request.(3)
Unless a court first conducts a hearing to determine whether mediation
is appropriate, the court shall not submit a contested issue in a
domestic relations action, including postjudgment proceedings, if the
parties are subject to a personal protection order or are involved in a
child abuse and neglect proceeding. The court may order mediation
without a hearing if a protected party requests mediation.(D) Objections to Referral to Mediation. (1)
To object to mediation, a party must file a written motion to remove
the case from mediation and a notice of hearing of the motion, and serve
a copy on the attorneys of record within 14 days after receiving notice
of the order assigning the action to mediation. The motion must be set
for hearing within 14 days after it is filed, unless the hearing is
adjourned by agreement of counsel or unless the court orders otherwise.(2) A timely motion must be heard before the case is mediated.(3) Cases may be exempt from mediation on the basis of the following:(a) child abuse or neglect;(b) domestic abuse, unless attorneys for both parties will be present at the mediation session;(c)
inability of one or both parties to negotiate for themselves at the
mediation, unless attorneys for both parties will be present at the
mediation session;(d) reason to believe that one or both parties' health or safety would be endangered by mediation; or(e) for other good cause shown.(E) Selection of Mediator.(1) Domestic relations mediation will be conducted by a mediator selected as provided in this subrule.(2)
The parties may stipulate to the selection of a mediator. A mediator
selected by agreement of the parties need not meet the qualifications
set forth in subrule (G). The court must appoint a mediator stipulated
to by the parties, provided the mediator is willing to serve within a
period that would not interfere with the court's scheduling of the case
for trial.(3) If the parties have not stipulated to a mediator:(a)
the parties must indicate whether they prefer a mediator who is willing
to conduct evaluative mediation. Failure to indicate a preference will
be treated as not requesting evaluative mediation.(b)
the ADR clerk will assign a mediator from the list of qualified
mediators maintained under subrule (F). The assignment shall be made on a
rotational basis, except that if the parties have requested evaluative
mediation, only a mediator who is willing to provide an evaluation may
be assigned.(4)
The court shall not appoint, recommend, direct, or otherwise influence a
party's or attorney's selection of a mediator except as provided
pursuant to this rule. The 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.(5) The rule for disqualification of a mediator is the same as that provided in MCR 2.003 for the disqualification of a judge. The mediator must promptly disclose any potential basis for disqualification.(F) List of Mediators. (1)
Application. To appear on a roster, an applicant, which may be an
individual or organization, may apply to the ADR clerk to be placed on
the court's list of mediators. Application forms shall be available in
the office of the ADR clerk.(a) The form shall include a certification that (i) the applicant meets the requirements for service under the court's selection plan;(ii)
the applicant will not discriminate against parties or attorneys on the
basis of race, ethnic origin, gender, or other protected personal
characteristic; and(iii)
the applicant will comply with the court's ADR plan, orders of the
court regarding cases submitted to mediation, and the standards of
conduct adopted by the State Court Administrator under subrule (K).(b)
The applicant shall indicate on the form whether the applicant is
willing to offer evaluative mediation, and the applicant's rate for
providing mediation services.(c)
The form shall include an optional section identifying the applicant's
gender and racial/ethnic background; however, this section shall not be
made available to the public.(2)
Review of Applications. The court's ADR plan shall provide for a person
or committee to review applications annually, or more frequently if
appropriate, and compile a list of qualified mediators.(a)
Applicants meeting the qualifications specified in this rule shall be
placed on the list of approved mediators. Approved mediators shall be
placed on the list for a fixed period of time, not to exceed seven
years, and must reapply at the end of that time in the manner directed
by the court.(b)
Selections shall be made without regard to race, ethnic origin, or
gender. Residency or principal place of business may not be a
qualification.(c)
The approved list and the applications of approved mediators, except
for the optional section identifying the applicant's gender and
racial/ethnic background, shall be available to the public in the office
of the ADR clerk.(d) An applicant may attach a résumé or biographical information to the application.(e)
An applicant Community Dispute Resolution Program center must select
only mediators who meet the qualifications of this rule or training
requirements established by the State Court Administrator to mediate
cases ordered by the court.(3)
Rejection; Reconsideration. Applicants who are not placed on the list
shall be notified of that decision. Within 21 days of notification of
the decision to reject an application, the applicant may seek
reconsideration of the ADR clerk's decision by the presiding judge of
the family division. The court does not need to provide a hearing.
Documents considered in the initial review process shall be retained for
at least the period during which the applicant can seek reconsideration
of the original decision.(4)
Removal from List. The ADR clerk may remove from the list mediators who
have demonstrated incompetence, bias, made themselves consistently
unavailable to serve as a mediator, or for other just cause. Within 21
days of notification of the decision to remove a mediator from the list,
the mediator may seek reconsideration of the ADR clerk's decision by
the presiding judge of the family division. The court does not need to
provide a hearing.(G) Qualification of Mediators. (1)
To be eligible to serve as a domestic relations mediator under this
rule, an applicant must meet the following minimum qualifications:(a) The applicant must (i)
be a licensed attorney, a licensed or limited licensed psychologist, a
licensed professional counselor, or a licensed marriage and family
therapist;(ii) have a master's degree in counseling, social work, or marriage and family therapy;(iii) have a graduate degree in a behavioral science; or(iv) have 5 years experience in family counseling.(b)
The applicant must have completed a training program approved by the
State Court Administrator providing the generally accepted components of
domestic relations mediation skills.(c)
Upon completion of the training required under subrule (G)(1)(b), the
applicant must observe two domestic relations mediation proceedings
conducted by an approved mediator, and conduct one domestic relations
mediation to conclusion under the supervision and observation of an
approved mediator.(2)
An applicant who has specialized experience or training, but does not
meet the specific requirements of subrule (G)(1), may apply to the ADR
clerk for special approval. The ADR clerk shall make the determination
on the basis of criteria provided by the State Court Administrator.(3)
Approved mediators are required to obtain 8 hours of advanced mediation
training during each 2-year period. Failure to submit documentation
establishing compliance is grounds for removal from the list under
subrule(F)(4).(4) Additional qualifications may not be imposed upon mediators.(H) Mediation Procedure. (1) The mediator must schedule a mediation session within a reasonable time at a location accessible by the parties.(2)
The mediator must make reasonable inquiry as to whether either party
has a history of a coercive or violent relationship with the other
party. Throughout the mediation process, the mediator must make
reasonable efforts to screen for the presence of coercion or violence
that would make mediation physically or emotionally unsafe for any
participant or that would impede achieving a voluntary and safe
resolution of issues. A reasonable inquiry includes the use of the
domestic violence screening protocol for mediators provided by the state
court administrative office as directed by the supreme court.(3)
A mediator may require that no later than 3 business days before the
mediation session, each party submit to the mediator, and serve on the
opposing party, a mediation summary that provides the following
information, where relevant:(a) the facts and circumstances of the case;(b) the issues in dispute;(c)
a description of the marital assets and their estimated value, where
such information is appropriate and reasonably ascertainable;(d) the income and expenses of the parties;(e) a proposed settlement; and(f) such documentary evidence as may be available to substantiate information contained in the summary. Failure
to submit these materials to the mediator within the designated time
may subject the offending party to sanctions imposed by the court.
(4) The parties must attend the mediation session in person unless excused by the mediator.(5)
Except for legal counsel, the parties may not bring other persons to
the mediation session, whether expert or lay witnesses, unless
permission is first obtained from the mediator, after notice to opposing
counsel. If the mediator believes it would be helpful to the settlement
of the case, the mediator may request information or assistance from
third persons at the time of the mediation session.(6)
The mediator shall discuss with the parties and counsel, if any, the
facts and issues involved. The mediation will continue until a
settlement is reached, the mediator determines that a settlement is not
likely to be reached, the end of the first mediation session, or until a
time agreed to by the parties.(7)
Within 7 days of the completion of mediation, the mediator shall so
advise the court, stating only the date of completion of the process,
who participated in the mediation, whether settlement was reached, and
whether further ADR proceedings are contemplated. If an evaluation will
be made under subrule (I), the mediator may delay reporting to the court
until completion of the evaluation process.(8)
If a settlement is reached as a result of the mediation, to be binding,
the terms of that settlement must be reduced to a signed writing by the
parties or acknowledged by the parties on an audio or video recording.
After a settlement has been reached, the parties shall take steps
necessary to enter judgment as in the case of other settlements.(9) Confidentiality in the mediation process is governed by MCR 2.412.(I) Evaluative Mediation. (1)
This subrule applies if the parties requested evaluative mediation, or
if they do so at the conclusion of mediation and the mediator is willing
to provide an evaluation.(2)
If a settlement is not reached during mediation, the mediator, within a
reasonable period after the conclusion of mediation shall prepare a
written report to the parties setting forth the mediator's proposed
recommendation for settlement purposes only. The mediator's
recommendation shall be submitted to the parties of record only and may
not be submitted or made available to the court.(3)
If both parties accept the mediator's recommendation in full, the
attorneys shall proceed to have a judgment entered in conformity with
the recommendation.(4)
If the mediator's recommendation is not accepted in full by both
parties and the parties are unable to reach an agreement as to the
remaining contested issues, mediator shall report to the court under
subrule (H)(6), and the case shall proceed toward trial.(5)
A court may not impose sanctions against either party for rejecting the
mediator's recommendation. The court may not inquire and neither the
parties nor the mediator may inform the court of the identity of the
party or parties who rejected the mediator's recommendation.(6)
The mediator's report and recommendation may not be read by the court
and may not be admitted into evidence or relied upon by the court as
evidence of any of the information contained in it without the consent
of both parties. The court shall not request the parties' consent to
read the mediator's recommendation.(J) Fees. (1)
A mediator is entitled to reasonable compensation based on an hourly
rate commensurate with the mediator's experience and usual charges for
services performed.(2) Before mediation, the parties shall agree in writing that each shall pay one-half of the mediator's fee no later than: (a)
42 days after the mediation process is concluded or the service of the
mediator's report and recommendation under subrule (I)(2), or(b) the entry of judgment, or(c)
the dismissal of the action, whichever occurs first. If the court finds
that some other allocation of fees is appropriate, given the economic
circumstances of the parties, the court may order that one of the
parties pay more than one-half of the fee.(3)
If acceptable to the mediator, the court may order an arrangement for
the payment of the mediator's fee other than that provided in subrule
(J)(2).(4) The mediator's fee is deemed a cost of the action, and the court may make an appropriate judgment under MCL 552.13(1) to enforce the payment of the fee.(5)
In the event either party objects to the total fee of the mediator, the
matter may be scheduled before the trial judge for determination of the
reasonableness of the fee.(K)
Standards of Conduct. The State Court Administrator shall develop and
approve standards of conduct for domestic relations mediators designed
to promote honesty, integrity, and impartiality in providing
court-connected dispute resolution services. These standards shall be
made a part of all training and educational requirements for
court-connected programs, shall be provided to all mediators involved in
court-connected programs, and shall be available to the public.Rule 3.216 amended October 1, 2014, effective 1/1/2015; last amended May 24, 2017, effective 9/1/2017.
