The Michigan Court of Appeals has issued just its second published opinion on the enforceability of mediation agreements, and it’s another divorce case, Rettig v Rettig, Case No. 338614 (January 23, 2018). (The previous case was Vittiglio v Vittiglio, 297 Mich App 391; 824 NW2d 591 (2012).)  The narrow issue in Rettig concerns whether a trial court must make findings on the record regarding the best interests of the child(ren) and the established custodial environment, after the parties have already reached an agreement through mediation. (It does not.) So this case applies only to the minority of cases where a divorce involving minor children is mediated.

One question is why this case was one of the ten-percent of Court of Appeals cases selected for publication. Many thanks to my colleague Lee Hornberger for pointing out that it could be because Rettig overrules the holding in Vial v Flowers, Case No. 332549 (September 22, 2016), where the Court of Appeals ruled that the trial court had not “adequately examined” whether the mediated custody arrangement was in the best interests of the child. In Rettig, in contrast, the Court of Appeals rejected as “nonsensical” the father’s argument that the trial court was required to make a finding regarding “best interest” factors “in the context of an agreement between the parties.” The Rettig court seems much more willing to let the mediated agreement regarding custody stand without investigation by the trial court.

Interestingly, Judge Jane Markey was on the three-judge panels that decided both the Rettig case as well as Vial v Flowers.

Since it’s going to be published, becoming state-wide precedent, it’s worth considering other aspects of Rettig.

The court first wrestled with whether the “memorandum” that issued from the parties’ mediation was an enforceable agreement. It’s not clear why this was even an issue, since the memorandum apparently included various written terms and was signed by both parties. Why didn’t the Court simply refer to it as an “agreement”? The court said the husband “likened” their mediation agreement “to a mediation settlement, where MCR 3.216(H)(7) and MCR 2.507(G) would require certain procedures to be followed.” The only requirements of MCR 3.216(H)(7) are that “the terms of the settlement must be reduced to writing, signed by the parties.” The Court’s description of the Rettig memorandum meets this definition, so it’s unclear why the Court had to go to great lengths – noting that the agreement was “scrutinized” in a hearing – to declare it a valid agreement.

Rettig reiterates a point the Court has made in the past, that a party may not be relieved from a valid mediated agreement simply because that party has changed their mind. Consistent with other challenges to mediated agreements, the Court noted that the husband “had in fact agreed to the memorandum” but now appeared to have “simply regretted making it,” a condition to which the Court is unsympathetic.

The opinion says that the parties participated in “facilitated mediation.” Since the Court Rule defines “mediation” as a process in which a neutral third party “facilitates” communication, MCR 3.216(A)(2), it’s redundant to describe the process as “facilitated” mediation. Michigan continues to struggle with terminology regarding mediation, and the Court of Appeals is not helping.

One hopes that, before it’s officially published, the editors correct the typo in the second-to-last paragraph, “… whether the trial court must more stringently find by clear and convincing evidence that changing any established custodial environment is in the child’s best interest.”