7.6Alternative Dispute Resolution in Cases Involving Domestic Violence

“All civil cases are subject to alternative dispute resolution processes unless otherwise provided by statute or court rule.” MCR 2.410(A)(1). Courts that use ADR pursuant to MCR 2.410 must develop an ADR plan by local administrative order and must meet the requirements of MCR 2.410(B). MCR 2.410(B)(1).

A.Child Protection Mediation

A brief discussion on child protection mediation as it relates to domestic violence is contained in this subsection. For additional information on child protection mediation, see the Michigan Judicial Institute’s Child Protective Proceedings Benchbook, Chapter 7.

“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 a child protection mediation, the mediator is required to 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.”¹ MCR 3.970(G)(2).

B.Domestic Relations Mediation

“MCR 3.216 governs mediation of domestic relation cases.” MCR 2.411(A)(1). For purposes of MCR 3.216, “[d]omestic relations mediation is a nonbinding process in which a neutral third party facilitates communication between parties to promote settlement.”² MCR 3.216(A)(2). The parties may also request an evaluative mediation, which permits a mediator, if he or she is willing to do so, to provide a written recommendation for settlement of issues that are still unresolved at the conclusion of the mediation proceeding. MCR 3.216(A)(2). MCR 3.216(I) governs evaluative mediation procedures.

A brief discussion on domestic relations mediation as it relates to domestic violence is contained in this subsection. For additional information on domestic relations mediation in general, see MCR 3.216.

“All domestic relations cases, as defined in MCL 552.502(m), and actions for divorce and separate maintenance that involve the distribution of property are subject to mediation under [MCR 3.216], unless otherwise provided by statute or court rule.” MCR 3.216(A)(1). Upon stipulation by the parties, the court may order “the use of other settlement procedures.” MCR 3.216(A)(4). Note that “[u]nless a court first conducts a hearing to determine whether mediation is appropriate, the court shall not submit a contested issue in a domestic relations action, including postjudgment proceedings, if the parties are subject to a [PPO] or other protective order, or are involved in a child abuse and neglect proceeding[;³ t]he court may order mediation without a hearing if a protected party requests mediation.” MCR 3.216(C)(3). See also MCL 600.1035(1). In addition, MCR 3.216(D)(3) provides bases for certain cases to be exempt from mediation.⁴

If the trial court “submits domestic relations cases to mediation under [MCR 3.216][,] [it] shall include in its alternative dispute resolution plan adopted under MCR 2.410(B) provisions governing selection of domestic relations mediators, and for providing parties with information about mediation in the family division as soon as reasonably practical.” MCR 3.216(B).

1.Referral to Mediation

“On written stipulation of the parties, on written motion of a party, or on the court’s initiative, the court may submit to mediation by written order any contested issue in a domestic case, including postjudgment matters.” MCR 3.216(C)(1). Note, however, that “[t]he court may not submit contested issues to evaluative mediation unless all parties so request.” MCR 3.216(C)(2).

“Unless a court first conducts a hearing to determine whether mediation is appropriate, the court shall not submit a contested issue in a domestic relations action, including postjudgment proceedings, if the parties are subject to a [PPO] or are involved in a child abuse and neglect proceeding. The court may order mediation without a hearing if a protected party requests mediation.” MCR 3.216(C)(3). See also MCL 600.1035(1). In addition, certain cases may be exempt from mediation if any of the following exist:

“(a) child abuse or neglect;

(b) domestic abuse, unless attorneys for both parties will be present at the mediation session;

(c) 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;

(d) reason to believe that one or both parties’ health or safety would be endangered by mediation; or

(e) for other good cause shown.” MCR 3.216(D)(3).

According to the Model Code on Domestic and Family Violence, Section 408(A), pp 36-37,⁵ a guide that the National Council of Juvenile and Family Court Judges developed to promote protection and safety of victims of domestic or family violence, mediation should not be ordered or referred to in the following circumstances:

“1. In a proceeding concerning the custody or visitation of a child, if an order for protection is in effect, the court shall not order mediation or refer either party to mediation.

2. In a proceeding concerning the custody or visitation of a child, if there is an allegation of domestic or family violence and an order for protection is not in effect, the court may order mediation or refer either party to mediation only if:

(a) Mediation is requested by the victim of the alleged domestic or family violence;

(b) Mediation is provided by a certified mediator who is trained in domestic and family violence in a specialized manner that protects the safety of the victim; and

(c) The victim is permitted to have in attendance at mediation a supporting person of his or her choice, including but not limited to an attorney or advocate.”

To help “identify parties involved in divorce or child custody actions for when mediation may be inappropriate because of domestic violence or child abuse, and to maximize safety in the mediation process[,]” the State Court Administrative Office and the Michigan Domestic and Sexual Violence Prevention and Treatment Board collaborated with professionals in the field to develop the Domestic Violence Screening Protocol for Mediators of Domestic Relations Conflicts.

Because special circumstances may exist that make it difficult to complete the full questionnaire contained in the Model Screening Protocol, the Michigan Domestic and Sexual Violence Prevention and Treatment Board also developed two abbreviated domestic violence screening questionnaires contained in the Domestic Violence Screening Protocol for Mediators of Domestic Relations Conflicts, Abbreviated Domestic Violence Screening Questionnaires.

2.Objections to Referral to Mediation

A party may object to a court’s decision to refer the case to mediation. See MCR 3.216(D). “To object to mediation, a party must file a written motion to remove the case from mediation and a notice of hearing of the motion, and serve a copy on the attorneys of record within 14 days after receiving notice of the order assigning the action to mediation. The motion must be set for hearing within 14 days after it is filed, unless the hearing is adjourned by agreement of counsel or unless the court orders otherwise.” MCR 3.216(D)(1).

MCR 3.216(D)(2) requires “[a] timely motion [to] be heard before the case is mediated.”

3.Confidentiality and Disclosure of Mediation Communications

The confidentiality provisions contained in MCR 2.412 apply to cases referred for domestic relations mediation under MCR 3.216. MCR 2.412(A). Under MCR 2.412, “[m]ediation communications are confidential. They are not subject to discovery, are not admissible in a proceeding, and may not be disclosed to anyone other than mediation participants except as provided in [MCR 2.412(D)].” MCR 2.412(C). The confidentiality protection provided by MCR 2.412(C) is not limited to communications made by a mediation participant; rather, the confidentiality provided by MCR 2.412(C) extends to statements made by individuals who are neither mediation participants nor parties to the mediation, if the statements were made during the “mediation process.” Tyler v Findling, 508 Mich 364, 371 (2021). These communications include statements made during mediation, as well as statements made before the beginning of mediation, as long as the statements were made for the purpose of preparing for mediation. Id. It is not necessary for a mediator to meet with the parties and their attorneys before statements made for the purpose of mediation—by participants and nonparticipants alike—become mediation communications under MCR 2.412(B)(2), and as a result, qualify for protection from disclosure under MCR 2.412(C). Tyler, 508 Mich at 371.

MCR 2.412(D) permits the disclosure of mediation communications in the following circumstances:

“(1) All mediation parties agree in writing to disclosure.

(2) A statute or court rule requires disclosure.

(3) The mediation communication is in the mediator’s report under MCR 2.411(C)(3) or [MCR 3.216(H)(7)⁶].

(4) The disclosure is necessary for a court to resolve disputes about the mediator’s fee.

(5) The disclosure is necessary for a court to consider issues about a party’s failure to attend under MCR 2.410(D)(3).

(6) The disclosure is made during a mediation session that is open or is required by law to be open to the public.

(7) Court personnel reasonably require disclosure to administer and evaluate the mediation program.

(8) The mediation communication is

(a) a threat to inflict bodily injury or commit a crime,

(b) a statement of a plan to inflict bodily injury or commit a crime, or

(c) is used to plan a crime, attempt to commit or commit a crime, or conceal a crime.

(9) The disclosure

(a) Involves a claim of abuse or neglect of a child, a protected individual, or a vulnerable adult; and

(b) Is included in a report about such a claim [is] sought or offered to prove or disprove such a claim; and

(i) Is made to a governmental agency or law enforcement official responsible for the protection against such conduct, or

(ii) Is made in any subsequent or related proceeding based on the disclosure under subrule (D)(9)(b)(i).

(10) The disclosure is included in a report of professional misconduct filed against a mediation participant or is sought or offered to prove or disprove misconduct allegations in the attorney disciplinary process.

(11) The mediation communication occurs in a case out of which a claim of malpractice arises and the disclosure is sought or offered to prove or disprove a claim of malpractice against a mediation participant.

(12) The disclosure is in a proceeding to enforce, rescind, reform, or avoid liability on a document signed by the mediation parties or acknowledged by the parties on an audio or video recording that arose out of mediation, if the court finds, after an in camera hearing, that the party seeking discovery or the proponent of the evidence has shown

(a) that the evidence is not otherwise available, and

(b) that the need for the evidence substantially outweighs the interest in protecting confidentiality.”

If a mediation communication is disclosed under MCR 2.412(D), “only that portion of the communication necessary for the application of the exception may be disclosed.” MCR 2.412(E)(1). “Disclosure of a mediation communication under [MCR 2.412(D)] does not render the mediation communication subject to disclosure for another purpose.” MCR 2.412(E)(2). “Evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its disclosure or use in a mediation.” MCR 2.412(E)(3).

4.Appeal Cannot Be Referred to Mediation

“Appeals of domestic relations actions and protection matters [before the Court of Appeals] are excluded from mediation under [MCR 7.213].” MCR 7.213(A).

C.Domestic Relations Arbitration

A brief discussion on domestic relations arbitration as it relates to domestic violence is contained in this subsection. For additional information on domestic relations arbitration in general, see the Domestic Relations Arbitration Act, MCL 600.5070 et seq., and for additional information on arbitration procedures, see the Uniform Arbitration Act, MCL 691.1681 et seq., and MCR 3.602.

Arbitration in domestic relations matters is subject to the provisions of the Domestic Relations Arbitration Act, MCL 600.5070 et seq., the Uniform Arbitration Act, MCL 691.1681 et seq., and “by court rule except to the extent those provisions are modified by the arbitration agreement or [the Domestic Relations Arbitration Act, MCL 600.5070 et seq.].”⁷ MCL 600.5070(1).

Note: “On or after July 1, 2013, th[e Uniform Arbitration Act] governs an agreement to arbitrate whenever made.” MCL 691.1683. However, “[the Domestic Relations Arbitration Act] provides for and governs arbitration in domestic relations matters[,]” and the Domestic Relations Arbitration Act controls if the statutory language of the Domestic Relations Arbitration Act, MCL 600.5070 et seq., conflicts with the Uniform Arbitration Act, MCL 691.1681 et seq. MCL 600.5070(1).⁸

1.Parties May Stipulate to Binding Arbitration

MCL 600.5071 permits parties to stipulate to binding arbitration in certain types of cases:

“Parties to an action for divorce, annulment, separate maintenance, or child support, custody, or parenting time, or to a postjudgment proceeding related to such an action, may stipulate to binding arbitration by a signed agreement that specifically provides for an award with respect to 1 or more of the following issues:

(a) Real and personal property.

(b) Child custody.

(c) Child support, subject to the restrictions and requirements in other law and court rule as provided in this act.

(d) Parenting time.

(e) Spousal support.

(f) Costs, expenses, and attorney fees.

(g) Enforceability of prenuptial and postnuptial agreements.

(h) Allocation of the parties’ responsibility for debt as between the parties.

(i) Other contested domestic relations matters.”

2.Court Order to Participate in Arbitration

A court must not order the parties to participate in arbitration without informing the parties of the information in MCL 600.5072(1), including the voluntary nature of the proceedings and that “[a]rbitration is not recommended for cases involving domestic violence.” MCL 600.5072(1); MCL 600.5072(1)(a); MCL 600.5072(1)(c). Before ordering arbitration, the parties must acknowledge, in writing or on the record, that he or she receive all of the information contained in MCL 600.5072(1). See the statute for the full list of information that must be given to the parties.

MCL 600.5072(4) specifically prohibits arbitration under the Domestic Relations Arbitration Act in child abuse or neglect cases.

In domestic violence cases, arbitration is also prohibited unless each party submits a valid waiver. See MCL 600.5072(2)-(3). Specifically, MCL 600.5072(2)-(3) provide:

“(2) If either party is subject to a [PPO] involving domestic violence or if, in the pending domestic relations matter, there are allegations of domestic violence or child abuse, the court shall not refer the case to arbitration unless each party to the domestic relations matter waives this exclusion.^[9] A party cannot waive this exclusion from arbitration unless the party is represented by an attorney throughout the action, including the arbitration process, and the party is informed on the record concerning all of the following:

(a) The arbitration process.

(b) The suspension of the formal rules of evidence.

(c) The binding nature of arbitration.

(3) If, after receiving the information required under subsection (2), a party decides to waive the domestic violence exclusion from arbitration, the court and the party’s attorney shall ensure that the party’s waiver is informed and voluntary. If the court finds a party’s waiver is informed and voluntary, the court shall place those findings and the waiver on the record.”

The validity of a party’s voluntary submission to binding arbitration requires record evidence that the prearbitration disclosures mandated by MCL 600.5072(1) were satisfied. Johnson v Johnson (William), 276 Mich App 1, 9-10 (2007) (lower court erroneously entered a default judgment against plaintiff based on plaintiff’s failure to participate in arbitration when plaintiff was not advised of the limited availability of appellate review, it was unclear whether the agreement to arbitrate included determining spousal support or alimony, it was unclear whether the agreement to arbitrate was voluntarily made, and the parties were not advised that the arbitration fee was unnecessary if they chose to continue with trial).

3.Arbitrator Requirements

In order to be appointed as an arbitrator, the individual must meet all of the following qualifications:

“(a) [Be] an attorney in good standing with the state bar of Michigan.

(b) Has practiced as an attorney for not less than 5 years before the appointment and has demonstrated an expertise in the area of domestic relations law.

(c) Has received training in the dynamics of domestic violence and in handling domestic relations matters that have a history of domestic violence.” (Emphasis added).

4.Record of Arbitration Hearing

MCL 600.5077 governs the recording of an arbitration hearing:

“(1) Except as provided by [MCL 600.5077], court rule, or the arbitration agreement, a record shall not be made of an arbitration hearing under [the Domestic Relations Arbitration Act, MCL 600.5070 et seq.]. If a record is not required, an arbitrator may make a record to be used only by the arbitrator to aid in reaching the decision. The parties may provide in the arbitration agreement that a record be made of those portions of a hearing related to 1 or more issues subject to arbitration.

(2) A record shall be made of that portion of a hearing that concerns child support, custody, or parenting time in the same manner required by the Michigan court rules for the record of a witness’s testimony in a deposition.”