Mediation and Friend of the Court ADR in Michigan

Two tracks

• Domestic relations mediation (MCR 3.216). On stipulation, a party’s motion, or its own initiative, the court may order any contested issue, including postjudgment matters, to mediation by a mediator from the court’s list or one the parties agree on. It is nonbinding.
• Friend of the Court ADR (MCL 552.513, MCR 3.224). In a Friend of the Court case, the office provides dispute resolution, directly or by contract, to help parents settle custody and parenting time disputes, under a plan approved by the chief judge and SCAO. It can include FOC mediation, facilitative and information-gathering conferences, and joint meetings.

What is confidential and what is not

This difference matters for what you say:

• FOC mediation: communications are confidential and cannot be used in court proceedings, with the exceptions in MCR 2.412(D) (MCR 3.224(G)(2)).
• FOC facilitative conferences and joint meetings: statements are not confidential and can be used in court, except what is said during domestic violence screening (MCR 3.224(F)(1)(c) and (H)(2)).
• Mediation under MCR 3.216: confidentiality is governed by MCR 2.412 (MCR 3.216(H)(9)).

None of the FOC ADR processes may be recorded by participants (MCR 3.224(A)(10)).

Safety screening

Every FOC ADR process must start with SCAO’s domestic violence screening protocol, and if domestic violence is identified or suspected, it cannot continue unless the protected party consents in writing and the FOC takes extra safety precautions (MCR 3.224(F), (G), (H)). A mediator under MCR 3.216 must also make reasonable inquiry about coercion or violence (MCR 3.216(H)(2)).

If the parties are subject to a personal protection order or involved in a child abuse or neglect proceeding, the court cannot send them to mediation without first holding a hearing on whether it is appropriate, unless the protected party asks for it (MCR 3.216(C)(3), MCR 3.224(D)(1)).

Objecting to mediation

To object to a mediation order, a party files a written motion to remove the case from mediation and a notice of hearing within 14 days after receiving notice of the order (MCR 3.216(D)(1), MCR 3.224(E)(2)). Grounds include child abuse or neglect; domestic abuse or inability to negotiate for oneself, each unless attorneys for both parties will be present; risk to health or safety; or other good cause (MCR 3.216(D)(3)). To object to an FOC joint meeting, file a written objection with the FOC before the meeting (MCR 3.224(E)(4)).

How a mediation session works

• A mediator may ask each party, at least 3 business days before the session, for a summary of the facts, disputed issues, income and expenses, and a proposed settlement (MCR 3.216(H)(3)).
• Parties attend in person unless the mediator excuses them, and cannot bring other people except counsel without the mediator’s permission (MCR 3.216(H)(4) and (5)).
• A settlement is binding only if it is put in a writing signed by the parties or acknowledged on an audio or video recording (MCR 3.216(H)(8)).
• Unless the court orders otherwise, the parties split the mediator’s fee equally (MCR 3.216(J)(2)).

After FOC ADR

If parents reach agreement in FOC ADR, a consent order is prepared and submitted to the court (MCL 552.513(2)). After a joint meeting or facilitative conference without agreement, the FOC may send a recommended order. You then have 21 days to file a written objection, and a timely objection leads to a hearing (MCR 3.224(F)(2), (H)(1)(e)).

Primary sources

Rules and forms change. Check the current version at the source before you file.

• MCR 3.216, domestic relations mediation (Chapter 3)
• MCR 3.224, Friend of the Court ADR (Chapter 3)
• MCL 552.513, FOC alternative dispute resolution