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 Consistent with similar unpublished cases on this issue, the Court of Appeals affirmed the trial court’s dismissal of her claims – and in the process raised some troubling questions about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.

Should mediation training include evaluative as well as facilitative mediation? A recent law review article complains that mediators are trained only in the facilitative style of mediation, yet the market demands an evaluative style, leaving mediators ill-equipped for real-world mediation. The article, Practical Considerations in Mediation Training: Should Mediators be Trained to Adapt to the Circumstances of Each Case?, 11 Appalachian J.L. 185 (2012) by Professor Kenneth F. Dunham, of Faulkner University’s Thomas Goode Jones School of Law, draws on research to show that business parties and their attorneys prefer evaluative mediators, leaving facilitative-trained mediators to “find their own way to the directional/evaluative approach preferred by” most mediation consumers.

As a mediation trainer who has trained mediators only in the facilitative style for twenty years, I’ve heard this complaint before. Based on my own experience as a mediator, buttressed by national leaders in the field such as Josh Stulberg, Lela Love and Kimberlee Kovach, I prefer facilitative over evaluative, for a variety of reasons. The terms were coined by Prof. Leonard Riskin in a landmark article, Understanding Mediators’ Orientations, Strategies, and Techniques: A Grid for the Perplexed, 1 Harvard Negotiation Law Review 7 (1996) to explain the mediator’s level of involvement in a particular outcome to the mediation. In a subsequent article, Prof. Riskin reframed “facilitative” as “elicitive,” to clarify that this mediator style elicits solution options from the parties; and he re-cast “evaluative” as “directive” to clarify how this mediator style directs the parties to an outcome that the mediator believes to be fair and acceptable. Decisionmaking in Mediation: The New Old Grid and the New New Grid System, 79 Notre Dame L. Rev. 101 (2003). Prof. Riskin contends that a good mediator ought to be adept along the full spectrum from facilitative/elicitive to evaluative/directive, and I agree.

We train in the facilitative style because it’s harder to learn. Throughout the training, people are fighting their natural inclination to “just tell the parties what to do.” A professional who is selected by parties who know and respect her, to mediate a case where she has subject-matter expertise, will instinctively conduct an evaluative mediation, and do just fine, without any training. Prof. Dunham’s survey indicates that mediators would still like some training in how to conduct evaluative mediation. I don’t think there’s much out there, and there should be.

But is the problem with the training, or with the market? As Prof. Dunham notes, attorneys gravitate towards the evaluative approach because it’s more like judicial settlement conferences and thus more familiar. If the market is thus demanding evaluative mediators, one solution is to change our training offerings, but the other solution is to educate clients to possibilities outside of their comfort zone. Mediators who use facilitative skills—asking questions, involving the clients, searching for creative, non-monetary options, exploring underlying interests and relationships—can help educate mediation consumers about the benefits of a more facilitative approach to mediation. My facilitative-mediator colleagues and I could tell story after story of cases where a narrow-evaluative approach would have resulted in impasse, or an unsatisfactory monetary payment, but the facilitative-broad approach resulted in creative outcomes that pleased everyone. Facilitative-trained mediators expand options for mediation users even when users think they want an evaluative approach.

So, yes, offer some training in how to mediate in the evaluative style, but not at the expense of facilitative mediation training.

Too Many Standards of Conduct?

History of Michigan’s Standards of Conduct for Mediators
The State Court Administrative office convened a committee a couple years ago to review Michigan’s Standards of Conduct for Mediators and recommend any needed changes. Michigan’s Standards were adopted in 2001, based on the Model Standards of Conduct for Mediators of general civil cases – but the Model Standards were revised in 2005 and it seemed appropriate at least to consider whether Michigan’s needed similar revisions.

Michigan’s current Standards are very cursory; they run to two pages, whereas the Model Standards go on for eight pages. Michigan’s Standards basically took the first sentence or two from each of the nine Model Standards, without the accompanying explanation that fleshes out the principle. For example, Michigan’s current Standard on self-determination consists of two sentences, stating that mediation is based on party self-determination, with a simple definition of the term. The Model Standards contain four paragraphs on this Standard, delving into much more detail about the extent, timing, and challenges of implementing the principle of party self-determination.

Not surprisingly, the committee that reviewed Michigan’s Standards of Conduct (of which I was a member) determined that they needed a thorough revision. We felt that the current Standards did not provide nearly enough guidance to mediators on how to deal with ethical dilemmas, nor did they give enough information to alert mediators to potential ethical dilemmas. For example, mediators have gotten into trouble for failing to recognize that a party has, by the end of the mediation, lost her ability to make good decisions—in legal terminology, that she no longer has the capacity to contract. She may have been fine at 9 am, but by 6 pm, she is tired, her medication is wearing off, or whatever, so she later tries to get out of the agreement and blames the mediator for forcing her to sign it. (A famous example is Olam v. Congress Mortgage, 68 F. Supp. 2d 1110 (ND Calif, 1999). See also, Guthrie v Guthrie, 259 Ga App 751 (2003)). The Model Standards thus specify that mediators have an ethical obligation, throughout the mediation, to ensure a party’s capacity to mediate. Michigan’s Standards nowhere mention this important principle.

Proposed Revised Standards of Conduct
The State Court Administrative Office (SCAO) has therefore proposed a revised version of the Standards of Conduct for Mediators that not only provides the kind of detailed guidance found in the Model Standards, but also covers all types of mediations, including domestic relations, general civil, and probate. I wrote about highlights of these proposed Standards in my blog in November 2011. SCAO posted the Standards for comment this past winter, and convened the Standards Committee again last month to address the comments received. A modified revision will be forthcoming shortly.

Meanwhile, I have had the privilege of training Michigan mediators in these proposed Standards, and have received a wide range of reactions to them. Mediators with a varied practice are generally relieved to have only one set of Standards to consult. Some appreciate the specific reminders in this lengthier version—e.g., that fee arrangements should be in writing, that a mediator should withdraw from illegal agreements, that both the parties and the mediator should determine who participates in the mediation.

Complaints about the proposed Standards
But others have expressed concern about these new Standards. Will these more specific provisions give parties more grounds for grievances against their mediator? Is it too much for a mediator to try to remember? Do they set the bar too high? If no one was complaining about mediator behavior, why mess with success? Did we really need new Standards of conduct? One mediator told me sadly that these proposed Standards will take away her joy in mediating, because now she’ll be worried at every turn that she might be violating one of the innumerable provisions. Another commented that, if he had learned all these Standards when he first got trained to mediate, he would never mediate, out of fear.

A lawyer-mediator complained to me that it’s in the nature of committees to complicate the simple, and to elaborate on the concise. He sees the current Standards more like the Constitution—a concise, pithy document–, and the proposed Standards more like regulations that number into the thousands, anticipating problems no one has. “Regulations should not overwhelm the mediation process and reduce it to the IRS code, beset with minefields,” he said.

My response to the complaints
Parties rarely sue, or even complain about, their mediator—and even if they did, I don’t think that’s a good reason to reject more thorough standards of conduct. The absence of complaints about mediators doesn’t mean that mediators can stagnate; we should always strive to improve our practice. I see the proposed Standards as a much more helpful tool for mediators, both outside of and during a mediation, than the current Standards, which never seem to answer my particular question regarding ethical obligations. I don’t think the proposed Standards set a higher bar than the current Standards—at least, not too much higher. I think they provide better explanations of what that bar is, and how to attain it. But the bottom line is that I’m not objective. I helped draft these Standards, so there’s definitely some pride of authorship. I’m sort of a “geek” about Standards; they give me comfort – I love knowing that better minds than mine have carefully thought about potential problems and how to avoid or navigate through them.

What do you think? Are Michigan mediators better off with ten pages of ethical standards, or two?