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Alternative Dispute Resolution

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Trials can be messy, drawn-out affairs filled with uncertainty for all participants involved. Therefore, attorneys and parties involved in litigation strive to settle the matter prior to trial. Trials can last a couple hours or even days, depending on the complexity of the issues involved, the number of witnesses that will be called, and the amount of evidence presented. At trial, a judge will be making a decision based only on the evidence presented during the trial and even though you have the opportunity to present your case, the judge is still limited to what is presented and will only have a partial picture of your family and situation when making their decision.

For many litigants, leaving the such important decisions to a stranger is stressful and fraught with uncertainty. Fear of the unknown is a great motivator in parties to seek a resolution that they understand and can live with which is one reason that settlements are common, especially in family law. Not everyone can settle their cases and resolve their disagreements on their own, or even just with their attorneys, and sometimes they need additional help.  

In domestic relations actions, divorce and custody disputes, a majority of Michigan courts will order the parties to attend mediation to attempt to resolve their dispute prior to trial. Mediation is non-binding and the parties are free to agree or not agree. When ordered, the parties and their attorneys can either agree on a mediator, or have one appointed by the court if they cannot agree on a mediator to use.girl in jean jacket speaks with someone dressed in black during mediation session

Mediation is helpful, so long as the parties are properly prepared for it, have an understanding of the process and what to expect, and most importantly, willingness to negotiate in good faith. In order to properly prepare for mediation, a party should understand not only the process used, but also understand their position and what they’re willing to accept in a settlement. A discussion with your attorney about the mediation process used and the financial obligations regarding mediation is important.

Prior to mediation, the attorneys prepare and exchange summaries with each other and the mediator. A mediation summary is important because it not only identifies the issues the parties are litigating, whether it be custody, support, or property, it also outlines what the other side is seeking in a settlement. In many cases, this can be the first time to get a real idea of what the other side is asking for. Mediation summaries can provide a look at where the two sides disagree. They may be disagreeing on parenting, support, assets at issue and their values, or anything else at issue in the case Knowing this information ahead of time allows the attorneys to prepare to address the differences in positions in order to use the mediation time more effectively.

Sometimes mediation summaries can be inflammatory, in that they summarize the other sides’ position on why they should be awarded something (parenting time, etc.), but parties should not take it personally because that can negatively affect their willingness to reach a resolution. It is also important to understand that a mediation summary is a starting point for negotiations, not necessarily the bottom line of what the other party is willing to accept.

At mediation, everyone has different goals and going into the situation understanding that the mediator has a different goal than the parties and attorneys is key. However, the mediator’s goal of settling the case differs from the parties’ goal of settling the case in that they aren’t necessarily concerned with the terms of the deal, just that it was fairly agreed upon by the parties without undue influence, fraud or unfair bargaining. So, if you’re willing to give away the farm, a mediator will let you as long as they think you’re acting voluntarily and fully informed in doing so. This is key to understand because the mediators will often pressure parties to cede ground on their position which can cause parties to feel attacked.

In order to effectively prepare for the pressure to settle/mediation in general, need to talk with your attorney to discuss what your hope to achieve with mediation. A thorough consideration of your bottom-line settlement prior to even showing up at the mediation is vital. Discussing this and other outcomes with your attorney ahead of time is helpful so that you are both on the same page and go into mediation working together. Clients and attorneys that are unprepared for mediation often lead to regrettable settlements.  

While mediation is not binding in the sense that you don’t have to reach an agreement, if you do reach an agreement the mediator will usually put that agreement on a recording or in a written document that is enforceable. If you leave mediation without a formal agreement and just a general understanding of what you agree to, the parties can change their minds and back out of the deal. With a recording or written agreement, it will be enforceable and parties cannot back out of the deal if they later change their mind.

When mediation fails and the parties are unable to resolve their matter, trial isn’t the only option. Another possible alternative to resolve your matter is arbitration. Where mediation is non-binding, and the parties are free to leave mediation without an agreement, the arbitration process is binding and will result in a final decision that the Court will enter. With arbitration, the parties are essentially selecting their own private judge and will be bound by that decision. There are certain circumstances under which an arbitration decision can be appealed, but those circumstances are narrow. When it comes to custody and support decisions made during arbitration, they can be overturned by the court if the court finds the award is not in the best interests of the children. It is important to understand this before agreeing to arbitration.

Arbitration does have advantages as opposed to a trial. Arbitration offers the parties the chance to avoid a public trial where everything is part of the record. This can be beneficial for parties that value privacy and want to limit the information that becomes part of the public record. Another advantage is timing. Depending on the county you live in, the court may have a full docket with thousands of cases waiting to be heard. While the Michigan Supreme Court rules provide timelines by which the trial courts have to resolve cases on their dockets, and the trial courts try to adhere, sometimes cases can last over a year. Additionally, when scheduling, due to the number of cases, trials aren’t always scheduled on consecutive days and a single trial can take multiple days over the course of months. With arbitration, such scheduling issues can be eliminated and arbitrators have more control over their schedules and can more efficiently hear the matters and issue a decision.

Although arbitration may not be common to resolve entire cases, one area where it is common is regarding disputes over personal property items. Often times at mediations and in settlements, attorneys insert arbitration clauses regarding personal property disputes. These are used because attorneys do not want to waste their client’s funds arguing over property and put their client in a situation where they are spending more on attorney fees than the property is actually worth. In these cases, a settlement agreement will usually make reference to personal property items and include an arbitration clause to address personal property disputes. These clauses operate to send the parties to an arbitrator, usually without an attorney, who will determine who gets what personal property items. When signing a settlement or judgment that includes these clauses, it is important to fully understand these clauses and your rights and responsibilities under them as they are enforceable.

When involved in domestic relations litigation, it’s important to discuss these alternative dispute resolution methods with your attorney so that you can fully understand all legal options available to you to resolve your case. While alternative dispute resolution methods are valuable tools in your case, without any knowledge or expectations, it will be overwhelming.

The Law Office of Kathryn Wayne-Spindler, P.C. has over 25 years of experience litigating and mediating parenting and custody disputes, we can effectively mediate and arbitrate, your dispute. Contact our Milford office at (248) 676-1000 to discuss your situation and how we can assist you. We help clients throughout Southeastern Michigan, including Genesee, Oakland Livingston, Washtenaw, and Wayne Counties, as well as Mid-Michigan in Clare, Gladwin, Ogemaw, and Roscommon Counties. Our experienced attorneys have counseled such clients in Milford, Hartland, Highland, White Lake, Commerce, Walled Lake, Waterford, West Bloomfield, South Lyon, New Hudson, Brighton, Howell, Ann Arbor, Holly, Fenton, Flint, Linden, Clarkston, Houghton Lake, Higgins Lake, Roscommon and many more local communities.