The dispute resolution process now known as “case evaluation” has been used by Michigan courts for forty years to settle litigated cases, but it is now on the far side of the bell curve in terms of its effectiveness. The basic concept seems sound: have a team of three outside attorneys review the case and offer their opinion as to its value, giving both sides an objective basis for negotiating a settlement. The original panels consisted of experienced, well-respected attorneys knowledgeable in the area of the law of that case. Their collective, seasoned assessment was hard to dispute, and the process resulted in many settlements.
As with other ADR processes, as soon as courts realized how effective it was, they sought to mandate it. It is now required of all tort cases filed in Michigan, and many courts order all civil cases to case evaluation. But two things have happened to reduce its benefit. Practitioners readily identify one cause: the expansion of panel members to include any attorney who has practiced for at least five years. Panels no longer consist of “blue-ribbon” attorneys well-respected in their field, and may now include lawyers who do very little litigation and/or have little subject-matter expertise. So litigators now have good reason to question the panel’s determination.
The other factor is not so widely discussed. The original premise was that the panel would assess the amount the case would likely garner in a verdict—i.e., after a trial. The reality nowadays is that very few civil cases go to trial (fewer than 3% of all civil cases filed), so there’s little basis on which to predict a verdict. Case evaluators tend instead to assess “settlement value,” but since settlements are not usually made public, the value is based more on each attorney’s personal experience with settlements rather than on a widely-known standard.
Thus, case evaluation acceptance rates have been declining steadily in the last couple decades. Whereas originally parties accepted the case evaluation amount over half the time, the acceptance rate in many counties is now as low as 15%. Some counties, such as Grand Traverse and Berrien, have ceased ordering cases to case evaluation.
Meanwhile, as case evaluation’s effectiveness has dropped, mediation’s has increased. To assess both processes, the Supreme Court commissioned a study in 2010, and released the results a couple months ago. The study concluded that case evaluation neither increases nor decreases the cost of litigation much, but it does significantly increase the length of time that a case is open. Based on a sample of about 400 civil circuit court cases, it found that cases not submitted to case evaluation or mediation settled less than half the time; if they went to case evaluation, 62% settled; but if they went to mediation, an amazing 84% settled. In its survey of over 3,000 attorneys and 44 judges, it found that judges view case evaluation much more favorably than do attorneys, and have a higher view of the quality of the case evaluation panels than do attorneys. Despite the fact that the case evaluation acceptance rate in the cases studied was just 22% — and only 2% within the 28 days specified by the Court Rule–, the study recommended that the process continue, and the Supreme Court adopted amendments to the court rule on case evaluation (MCR 2.403) that slightly modify the process.
Case evaluation, as the study explains (Appendix A), is unique to Michigan. Some other states have some form of non-binding arbitration, but it is not used as widely, nor imposed through sanctions. Unlike mediation, case evaluation does not involve the clients; the participants, and the panel members, are all attorneys. Until 2000, the process was known as “mediation,” the panel members were called “mediators,” and the number they recommended was termed “the mediation award,” creating confusion both in and outside the state. It bears virtually no resemblance to any type of mediation, and is in fact a form of non-binding arbitration.
It makes little sense to require Michigan litigants to participate in a process that has only a one in five chance of settling the case, but will definitely protract it. Courts have long recognized the need to handle cases more expeditiously; the study reveals that an obvious way to do that would be to relax the requirement that all civil cases go to case evaluation. Only the Legislature can change the statute mandating that all tort cases proceed to case evaluation, but the Supreme Court could do more to educate courts on more effective and expeditious alternatives to case evaluation, such as mediation.

The ABA Journal recently posted a very good article on apology that encompasses all aspects of legal practice: The Last Word: When the Last Thing You Want to do is the First Thing You Ought to do. Many articles have been written about apology as a component of mediated settlements, and I’ve given workshops on how to handle the apology in mediation. This article goes beyond apology in settlements: It talks about how we lawyers ought to incorporate apology into the way we inter-act with other lawyers, and with our clients. Like one of the lawyers interviewed in the article, I had to apologize to another attorney after leaving an angry message in his voicemailbox. I have also had to apologize to mediation parties when I’ve slipped up. It’s embarrassing, but it’s the right thing to do.

It also honors God, so Christians ought to lead the way on how to do this well. But in fact we’re not very good at this, so I appreciate the tools and encouragement from Peacemaker Ministries to help us make sincere apologies/confessions. A very helpful tool is the “Seven A’s of Confession.” Bad apologies can actually make things worse, so the Seven A’s give me a better chance to make a sincere apology that will put things right.

…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.