Michigan now has its first published case on the enforceability of a mediated agreement. The case, Vittiglio v Vittiglio, involved a divorce mediation that resulted in an agreement. Prior to entry of the divorce judgment, the wife sought to disavow the mediated agreement, alleging that she was in effect coerced into consenting to it. Consistent with similar unpublished cases on this issue, the Court of Appeals affirmed the trial court’s dismissal of her claims – and in the process raised some troubling questions about mediation in Michigan.
I. Mediator evaluation
Most troubling is the court’s assertion that “a certain amount of pressure to settle is fundamentally inherent in the mediation process, and is practically part of the definition.” While parties may sometimes feel pressure to settle, it is not “inherent” in the process. Ideally, parties figure out that it is in their best interests to settle, not due to pressure, but due to reasoned understanding of the risks of not settling. In addition, mediation may be used to improve understanding, strengthen communication, and reconcile relationships, quite unrelated to settlement. In fact, it is a by-word among facilitative mediators that exerting pressure on a party to settle is likely to backfire and result in non-compliance with the mediated agreement — as this case attests.

To support its assertion, the court quotes the definition of mediation from the Michigan Court Rules: “mediation is a nonbinding process in which a neutral third party facilitates communication
between parties to promote settlement.” (MCR 3.216(A)2; see also MCR 2.411(A)2)) This definition supports the conclusion that court-based mediations are geared towards settlement, but it does not prove that “pressure” is inherent to mediation.

In this case, the wife averred that both her attorney and the mediator repeatedly told her that the proposed settlement was better than what she could expect to get at trial. Setting aside the fact that these communications are confidential (see MCR 2.412), the attorney’s role needs to be distinguished from the mediator’s. Predicting the likely outcome of the trial is an essential role of the attorney in mediation; whether it is also the role of the mediator is the subject of much debate. The fact that the Court of Appeals not only condones such mediator behavior but considers it “inherent to mediation” is discouraging if it results in more mediators practicing what amounts to non-binding arbitration, leaving parties feeling coerced into settlement.

II. Domestic violence
The wife argued that the husband had threatened to kill her and that she was afraid of him. The court apparently decided that the fact that the mediation was conducted through “shuttle diplomacy,” so that the parties were never together in the same room, provided sufficient protection for her. The court commended SCAO’s domestic violence screening protocol, without mentioning whether it was followed in this case. The court noted that the wife never actually said that the husband threatened her into agreeing to the settlement. Was this attorney negligence, or is it a misapprehension of the nature of domestic violence?
The court observed that Michigan’s current Standards of Conduct for Mediators do not specify any particular manner for handling cases where domestic violence exists. That is true, and it’s about to change; new, more comprehensive Standards will be adopted soon, and they specifically guide mediators on how to handle mediations where party safety is a concern.
The wife in this case basically challenged the mediation agreement on every possible ground—all the standard defenses to enforceability of a contract. In my research of other Court of Appeals cases on enforceability of mediated agreements (fewer than a dozen, all unpublished), the court has usually enforced the mediated agreement. Successful defenses include mutual mistake, ambiguity, and lack of a written agreement—none of which Ms. Vittiglio alleged.
So the Court’s decision upholding the mediation agreement is not surprising. I’m not sure why they chose to publish this particular case (only about 10% of Court of Appeals cases are published), but it does provide a comprehensive review of how contract law applies to mediated agreements, and Michigan law lacked that until now. I just hope the court’s endorsement of mediators pressuring parties to settle does not harm mediation practice in Michigan.