Each year for the last 10 years, the ADR Section of the State Bar of Michigan has teamed up with the Institute for Continuing Legal Education to sponsor the Advanced Negotiation and Dispute Resolution Institute (ANDRI). It is the premiere ADR event in Michigan, and I’ve been honored to present a workshop at it almost every year. The last couple years, I’ve focused on the agreement-writing phase of mediation. It doesn’t get too much attention in the basic mediation training, but it’s a critical phase of the mediation that could determine whether all the mediation work leading up to it results in a durable agreement.

Last year I shared the podium with Prof. Vince Wellman, who teaches Contracts at Wayne State University Law School. Vince is also a trained mediator, and he developed a template for mediation agreements, which I helped modify for “real-world” use. In our workshop at ANDRI last year, we focused on the details of the agreement-drafting portion of mediation. To view our template, click here: Agreement Template. I’ve since modified the template into a Checklist, with the assistance of community mediators who offered comments about how it could be most helpful to them. To view the checklist, click here: Agreement Checklist.

This year, I addressed a different aspect of the mediation agreement: how the mediator can help ensure that the parties reach a “durable” agreement that will not only survive a subsequent challenge to its enforceability, but will not even invite such a challenge. Prof. James Coben (last year’s ANDRI keynote speaker) and his team at Hamline University Law School have found over five hundred U.S. cases where mediated agreements were later challenged in court, and they have converted some of them to video clips (http://law.hamline.edu/adr/mediation-case-law-videos.html). We viewed some of these in my workshop yesterday, then tried to answer the query, What could the mediator have done differently so that this agreement would not be challenged in court? Some answers are obvious: monitor parties’ ability to participate meaningfully in the process, don’t berate a party, don’t alter an agreement at the request of one party after the mediation, ensure that parties understand the binding nature of the document they are signing. Some are less clear: if an obviously-ill party is represented by counsel, who insists that the mediation should proceed, should the mediator override their request?

We also viewed some Michigan cases determining enforceability of a mediated agreement. I have collected all the ones I know of, and they were included in the materials. I told the audience that I would be happy to become the repository of these cases, so if you come across one, please send it to me. As far as I know, none are published, so we don’t have any precedent yet in Michigan, but they are still instructive as to how the Ct of Appeals views this issue. In general, the Court upholds mediation agreements, and trial courts’ modifications of them. To view the compendium of  cases I’ve collected, click here: Michigan Case Law on Enforceability of Mediated Agreements.

Some of the rules governing mediation in Michigan may change in 2011. As I mentioned in November, Michigan’s court rule on mediation was adopted in 2000 and has not been amended since then. A new Court Rule on Confidentiality in mediation is being considered. The current rule (MCR 2.411(C)(5)) is two paragraphs; the proposed rule is two pages. So far there has not been much comment so it may well be approved this year. The State Court Administrative Office is proposing brand new Mediator Standards of Conduct, and they too may be finalized in 2011. The current Standards are two pages; the new ones run to eight, and are not only more comprehensive–they apply to both general civil and domestic relations mediation. Neither of these rules will change mediation practice in Michigan, but they will give mediators significantly more, and better, guidance than they have today.

Having done two arbitrations in the last month, I’m reflecting on some troubling aspects of Christian arbitration.

How can a witness be cross-examined to cast doubt on credibility, without violating  biblical commands to love one another? Should a Christian arbitrator permit cross-exam that dredges up dark incidents in the witness’s past, for the sole purpose of attacking the witness’s credibility? When does it turn into gossip, or slander? Is it kind? Is there another way for a lawyer to raise doubt about credibility besides by humiliation and innuendo? This is obviously an issue for any Christian litigator in court, but Christian arbitration is supposed to be conducted according to biblical standards. So how different should cross-exam be, when it’s in a Christian setting?

Should a party be permitted to question the motive of the other party? In one case, the party’s brief expounded on the theory that the other side was motivated by greed. In Christian mediation, mediators often recommend a ground rule of, “No assuming motives”—that neither party is permitted to speculate on what motivated the other party to do something, since such speculation is usually negative and sometimes worse than the truth.  If parties shouldn’t speculate on motives in mediation, should they in arbitration? Is it helpful for the arbitrator to be supplied with a possible motive for the other side’s [unacceptable] behavior, or is it simply unkind? Should the arbitrator impose a rule of “No assuming motives” in arbitration, or is that excessive?

Must each provision in an arbitration award be legally enforceable? Can the arbitrator include a recommendation that a party apologize to the other, for example?

Christian arbitration literally fulfills I Corinthians 6:5 (that there are indeed people within the church “wise enough to judge”) so it’s important to get it right.