Jurisdictional Analysis of Mediation
Scully, Daniel J., Jr., Defense Counsel Journal
COURTS in all jurisdictions are becoming more aggressive in their use of alternative dispute resolution techniques as a tool for addressing congested dockets and delays that are perceived as excessive. It may come as a surprise to many practitioners to learn that the term "mediation" is used to describe a wide variety of procedures. There appears to be no universal jurisdictional definition for the term, and this is further complicated when practitioners use the terms "arbitration" and "facilitation," which, practically speaking, can be equated as synonyms to "mediation" in other jurisdictions.
Another factor that cannot be overlooked is that certain federal courts have their own unique procedures and/or adopt the techniques of their resident state jurisdictions by way of local rules and orders.
MEDIATION IN MICHIGAN
Having participated in various dispute resolution vehicles in several states, I believe that Michigan provides interesting case study of the various techniques that many jurisdictions utilize. At the same time, the Michigan version of mediation has some unique characteristics that distinguish it from mediation in other jurisdictions.
In Michigan, mediation of tort actions filed in circuit court, the court of first instance, is mandatory. Michigan Court Rule 2.403 (MCR) details the mediation process and also prescribes sanctions if the mediation evaluation is rejected and the matter proceeds to trial and judgment.
In a typical tort action, mediation is designed to occur approximately 18 months after the case has been filed. As envisioned by the court, prior to mediation, discovery will have been terminated and the time constraint for dispositive motions will have passed. In practice, this is not always so.
Mediation itself consists of a presentation by counsel to a panel of three lawyers. Absent special circumstances described below, counsel has no direct input into the selection of the panel members. One of the panelists will be an individual from the defense bar, one from the plaintiffs' bar, and a neutral will come from either an unrelated area of practice or have a background that includes active participation on both sides of tort cases.
In the larger counties, the mediators are selected from a roll of approved individuals maintained by that county's mediation tribunal. In the past, the qualifications to sit as a mediator have varied, but in general there was a requirement of a minimum of five years of practice and verifiable trial experience. As of July 1, 1997, MCR 2.404 governs the selection of panels. It requires that an applicant for a mediation list to file an optional section identifying the applicant's gender and racial/ethnic background. The application also must certify that the applicant has practiced law for at least five years, is a member in good standing with the Michigan Bar, resides and/or maintains an office or "actively participates" in the jurisdiction, and that a "substantial part" of the applicant's practice for past five years has been devoted to civil "matters."
Fourteen days in advance of mediation, counsel submits a mediation summary. The summaries are made available to the panelists a few days before the scheduled mediation. It is only when those summaries are reviewed by the panelists that any potential conflict of interest and/or requirement for disclosure can be determined by the panelist. In larger counties, counsel will not know the identity of the mediators until they actually arrive at the mediation hearing itself. Accordingly, any conflicts of interest, disqualification or disclosure issues are addressed at that time, and if substitution of panelists are necessary, it is taken cared of at that time.
In some counties, the identities of the panelists are known in advance, which affords both the panelists and counsel an opportunity to handle any potential exposure or disqualification issue in advance of the hearing date. …