“MCR 3.970 governs mediation in child protective proceedings.” MCR 2.411(A)(1). See also MCR 3.970(A)(1), which provides that MCR 3.970 “applies to the mediation of child protective proceedings.” “‘Mediation’ includes dispute resolution processes in which a neutral third party facilitates communication between parties, assists in identifying issues, and helps explore solutions to promote a mutually acceptable settlement. A mediator or facilitator has no authoritative decision-making power.” MCR 3.970(A)(2).
“Each trial court that submits child protective proceedings to mediation processes under this rule shall either incorporate the process into its current ADR plan, or if the court does not have an approved ADR plan, adopt an ADR plan by local administrative order under MCR 2.410(B).” MCR 3.970(B).
“At any stage in the [child protective] proceedings, after consultation with the parties, the court may order that a case be submitted to mediation.” MCR 3.970(C)(1). “Unless a court first conducts a hearing to determine whether mediation is appropriate, the court shall not refer a case to mediation if the parties are subject to a personal protection order or other protective order. The court may order mediation without a hearing if a protected party requests mediation.” MCR 3.970(C)(2).
“In addition to other provisions the court considers appropriate, the order shall:
(a) specify, or make provision for selection of, the mediation provider;[1]
(b) provide time limits for initiation and completion of the mediation process.” MCR 3.970(C)(3).
“The order referring the case for mediation shall specify the time within which the mediation is to be completed. A copy of the order shall be sent to each party, the CDRP center or the mediator selected.” MCR 3.970(G)(1).
“The court shall not order a party to pay a fee for mediation services.” MCR 3.970(C)(3).
“The order may require attendance at mediation proceedings as provided in [MCR 3.970(E)2].” MCR 3.970(C)(4).
“A party may orally object to an order to mediate or in writing. Cases may be exempt from mediation on the basis of the following:
(1) Domestic abuse, unless attorneys for both parties will be present at the mediation session;
(2) Inability of one or both parties to negotiate for themselves at the mediation, unless attorneys for both parties will be present at the mediation session;
(3) Reason to believe that one or both parties’ health or safety would be endangered by mediation;
(4) A showing that the parties have made significant efforts to resolve the issues such that mediation is likely to be unsuccessful; or
(5) For other good cause shown.” MCR 3.970(D).
C.Attendance at Mediation Proceedings
“The court may direct that the attorneys representing the parties attend mediation proceedings. If the attorney representing a party is unable to attend, another attorney associated with the representing attorney may attend, but must be familiar with the case.” MCR 3.970(E)(1).
“The court may direct that the parties to the action and other persons:
(a) be present at the mediation proceeding or be immediately available by some other means at the time of the proceeding; and
(b) have information and authority adequate for responsible and effective participation in the proceeding for all purposes.
The court’s order may specify whether the availability is to be in person or by other means.” MCR 3.970(E)(2).
“Except for legal counsel, the parties may not bring other persons to the mediation session unless permission is first obtained from the mediator, after notice to opposing counsel.” MCR 3.970(E)(3).
“The failure of a party to appear in accordance with this rule may be considered a contempt of court.” MCR 3.970(E)(4).
“Following their attendance at a mediation session, a party may withdraw from mediation without penalty at any time.” MCR 3.970(G)(4).
“The parties may stipulate to the selection of a mediator. A mediator selected by agreement of the parties need not meet the qualifications set forth in [MCR 3.970(H) (setting out certain minimum qualifications a person must meet to be eligible for service as a mediator in child protection cases)].” MCR 3.970(F)(1).
“The court must appoint a mediator stipulated to by the parties, provided the mediator is willing to serve within a period that would not interfere with the court’s scheduling of the case. If the parties do not stipulate to a particular mediator, the court may select a Community Dispute Resolution Program (CDRP) center or other mediator who meets the requirements of [MCR 3.970(H)].” MCR 3.970(F)(1).
“The rule for disqualification of a mediator is the same as that provided in MCR 2.003 for the disqualification of a judge. The mediator must promptly disclose any potential basis for disqualification.” MCR 3.970(F)(2).
“The order referring the case for mediation shall specify the time within which the mediation is to be completed. A copy of the order shall be sent to each party, the CDRP center or the mediator selected. Upon receipt of the court’s order, the CDRP center or mediator shall promptly confer with the parties to schedule mediation in accordance with the order. The mediator may direct the parties to submit in advance, or bring to the mediation, documents or summaries providing information about the case.” MCR 3.970(G)(1).
F.Screen for Coercion or Violence
“The mediator must make reasonable inquiry as to whether either party has a history of a coercive or violent relationship with the other party. Throughout the mediation process, the mediator must make reasonable efforts to screen for the presence of coercion or violence that would make mediation physically or emotionally unsafe for any participant or that would impede achieving a voluntary and safe resolution of issues. A reasonable inquiry includes the use of the domestic violence screening protocol for mediators provided by the State Court Administrative Office as directed by the Supreme Court.”3 MCR 3.970(G)(2).
“The mediator shall discuss with the parties and counsel, if any, the facts and issues involved. Mediation participants may ask to meet separately with the mediator throughout the mediation process. The mediation will continue until: an agreement is reached, the mediator determines that an agreement is not likely to be reached, the end of the first mediation session, or until a time agreed to by the parties. Additional sessions may be held as long as it appears to the mediator that the process may result in an agreement.” MCR 3.970(G)(3).
“Following their attendance at a mediation session, a party may withdraw from mediation without penalty at any time.” MCR 3.970(G)(4).
“Within two days after the completion of the mediation process, the CDRP center or the mediator shall so advise the court, stating only: the date of completion of the process, who appeared at the mediation, whether an agreement was reached, and whether further mediation proceedings are contemplated. If an agreement was reached, the CDRP center or the mediator shall submit the agreement to the court within 14 days of the completion of mediation.” MCR 3.970(G)(5).
“Agreements reached in mediation are not binding unless the terms are incorporated in an order of the court or placed on the record and the court complies with MCR 3.971.” MCR 3.970(G)(6).
“Confidentiality in the mediation process is governed by MCR 2.412. However, previously uninvestigated allegations of abuse or neglect identified during the mediation process are not confidential and may be disclosed. The mediator shall advise the parties, orally and in writing, of the rules regarding confidentiality under MCR 2.412 and MCL 722.631.” MCR 3.970(G)(7).
1 See Section 7.8(D) for a discussion on selecting a mediator.
2 Although MCR 3.970(C)(4) refers to subrule (D), attendance at mediation proceedings is discussed under subrule (E).
3 See the Domestic Violence Screening Protocol for Mediators of Domestic Relations Conflicts.