Thursday, December 14, 2017

LR 16.4: Facilitative Mediation

(a) Definition.

    (1) Mediators. Mediators are neutral persons who meet with the litigants and facilitate settlement negotiations.

    (2) Mediation. Facilitative Mediation (mediation) is a flexible, nonbinding dispute resolution process in which an impartial third party -- the mediator -- facilitates negotiations among the parties to help them reach settlement. Mediation seeks to expand traditional settlement discussions and broaden resolution options, often by going beyond the issues in controversy. The mediator, who may meet jointly and separately with the parties, serves as a facilitator only and does not decide issues or make findings of fact. Cases will be assigned to mediation if the district or magistrate judge, after consultation with counsel or the parties, is satisfied that the selection of mediation will assist in the resolution of the case.

(b) Qualification of mediators. Mediators must be qualified by training or experience. Completion of a mediator training course approved by the Michigan Supreme Court Administrative Office is sufficient to establish qualifications. A judge may maintain a list of qualified mediators to assist the parties in selecting a mediator.

(c) Mediator Selection. The parties may select a mediator. The court may disapprove the selection. If the parties cannot agree on a mediator, the judge may

  • appoint a mediator from the parties' nominations
  • appoint a mediator from the judge's qualified mediator list, or
  • appoint another federal judicial officer, including a magistrate judge.
Once a mediator is selected, the court will enter an order appointing the mediator and referring the case to mediation.

COMMENT:The parties' choice of mediator will generally be honored and disapproval is expected to be exceedingly rare.

(d) Mediator Compensation. The mediator must be paid his or her standard hourly rate, assessed in as many equal parts as there are separately represented parties, unless the parties agree in writing or the court orders otherwise. The mediator is responsible for billing counsel and unrepresented parties.

COMMENT:Responsibility for payment of fees to mediators can be adjusted by the Court, considering the fairness in allocating likely expenses among the parties. In cases in which a party is represented by a pro bono attorney under the Court’s pro bono counsel program, volunteer mediators are available at no cost to the parties. See also LR 16.3(h).

(e) The Mediation Process.

    (1) Agreement. The mediator may require the parties to sign an agreement consistent with this rule regarding confidentiality of the proceedings, discovery for the proceedings, and other procedural matters.

    (2) Notice. The mediator must send a notice of the time and place of the mediation session(s) to participating parties.

    (3) Parties' Memoranda. Unless the mediator directs otherwise, no later than seven calendar days before the mediation session, each party must provide the mediator with a concise memorandum stating the party's position, including issues of both liability and damages. Mediators may establish formal requirements for the memoranda. The mediator may circulate the parties' memoranda if the mediator gives the parties notice before they submit them.

    (4) Process. The mediator will preside over the mediation session(s). The mediator may determine the length and timing of the session(s) and the order in which issues are presented. The mediator may meet jointly with the parties and separately with each party or group of parties. The mediator is expected to encourage and assist the parties in reaching a settlement but not to compel or coerce the parties to settle.

    (5) Party Responsibilities. All parties or individuals with settlement authority must attend the mediation session(s), unless the court orders otherwise. Corporate parties must be represented by an agent with authority to negotiate a binding settlement. In cases involving insurance carriers, an insurer representative with settlement authority must attend in person. Each party must be accompanied by the lawyer expected to be primarily responsible for handling trial of the matter. The court will excuse a party or lawyer from attending in person only on a showing of extraordinary circumstances.

    (6) Completion of Mediation. The mediator must advise the court of completion of mediation within seven days of completion, stating only the date of completion, who participated, whether settlement was reached, and whether further ADR proceedings are contemplated.

    (7) Settlement. If the case is settled, the parties must notify the court without delay and submit appropriate documents to conclude the case within 21 days of settlement.

February 01, 2015