…at least, we think that the Court Rule amendments adopted last week will improve the mediation process, at least marginally. The State Court Administrative Office convened a committee back in 2007 to review the ADR Court rules and recommend possible amendments. I had the privilege of serving on that committee, along with other mediators, attorneys, judges and court staff from around the state. We met several times, painstakingly reviewing each provision of MCR 2.403-404 (Case evaluation), and 2.410-411 (Mediation). Our committee issued its recommendations in July 2008. The Supreme Court responded by deciding that it needed a better understanding of the current role of case evaluation in Michigan courts, and resolved to solicit a study of case evaluation. Over the next three years, the Court saw many changes, including among its members, but eventually the study was commissioned. It was completed this fall and released to the public earlier this month. (The Effectiveness of Case Evaluation and Mediation in Michigan Circuit Courts) The Supreme Court has now adopted the recommended changes to the court rules that our committee proposed three years ago, effective May 1, 2012.

The study on mediation and case evaluation included a survey of over 3,000 attorneys and 44 judges, and elicited some interesting observations about use of mediation in Michigan courts. Judges reported that they send about one third of their civil cases to mediation. Both attorneys and judges agree that attorneys almost never object to being ordered to mediation; attorneys who had objected said that the judge overrode their objection half the time.

Both judges and attorneys agreed that mediation is an effective tool for resolving civil cases, although judges rated it more effective than did attorneys. Attorneys were asked to rate the outcomes of mediation, and how important they were. They said the most important outcomes were:
1) prompt clients to settle (85% important or very);
2) help address client expectations (85%);
3) reduce subsequent litigation costs (82%); and
4) provide a fair valuation of the case (80%).
Prompting clients to settle, and reducing litigation costs, were considered very important by more than half of the attorneys.

Only 24% of the attorneys thought that mediation proposed settlement terms not previously considered. That surprises me, as in other surveys I’ve seen, attorneys have said they value a mediator’s creativity in developing settlement terms and, in my own experience, it seems like that’s where I’ve been able to add value to the negotiation process.

As far as I can tell, the Supreme Court has adopted the recommendations our committee proposed in 2008. There are no major changes to current mediation practice. Here’s a summary of the changes to MCR 2.410 and 2.411 that go into effect May 1:

• Remove the requirement that courts should consult with parties before ordering a case to ADR. Although the committee members agreed that this is preferred practice, in fact no court was doing it. MCR 2.410(C)(1)
• Emphasize that judges should have no role in naming a particular mediator. Although the current rule prohibits this, it is widely practiced, so stronger language will hopefully minimize it in the future. New provision: MCR 2.411(B)(5)
• Acknowledge the significant role that Community Dispute Resolution Program centers play in mediation of court cases, and clarify that cases referred to centers can be mediated only by qualified mediators. MCR 2.411(E)(1)(d)
• Extend the renewal period for court rostered mediators from five to seven years. MCR 2.411(E)(2)
• Clarify that mediators cannot complete their “internship” (MCR 2.411(F)(2)(c)) until after they’ve completed the 40-hour training.