Mediation

Frequently Asked Questions

At what point in my case does mediation take place?
It can take place at anytime but it usually takes place at a date set by the court once both sides have had the opportunity to exchange discovery documents and discuss the issues between the attorneys. 

How much does mediation costs and who pays for it?
The cost of mediation involves paying your own attorney’s normal fee and ½ of the mediators fee (your spouse paying the other half).  The mediator normally charges by the hour or portion of the hour, generally between $250.00 to $350.00/ hour.   The mediator’s final fee depends on how long the mediation takes.  The mediator usually charges a minimum of one hour to prepare for the mediation by reading the parties briefs and reviewing any evidence or relevant documents.  The mediator schedules a minimum of three hours for the mediation.  However, in complex or heavily contested cases, it is not unusual for a mediation to last an entire day or even a second or third day as long as the parties are progressing toward settlement.   It is important to keep in mind that a settlement achieved at mediation is vastly less expensive than if the attorneys had to prepare for trial, resulting in significant savings to the client. 

What is the settlement rate for cases submitted to mediation?
Although there are no reported statistics, it is generally agreed in the legal community that approximately 80% of cases submitted to mediation settle.

Are all cases qualified to go to mediation?
No.  Cases involving child abuse and neglect, or where there has been domestic violence are generally not submitted to mediation.

Can I do  mediation without an attorney?
Yes, but this is not a wise decision since the mediator does not represent you and by inference, does not owe a duty to act in your best interest.  The mediator’s mission and focus is to settle your case, not to get you the best settlement personally.  Your attorney has the knowledge, training and experience to know if your interests are being protected fully at mediation and to assure you that the mediator is doing his job impartially and without error.  It would be no different if you went to court without an attorney.  You are basically on your own and the judge has no responsibility or duty to act as your advocate or act in your best interest. 

What happens if the case settles at mediation?
If the case settles, the mediator will draft a written settlement which both parties and their attorneys will read and sign.  The mediator will also make a tape recorded record that all parties understand and agree with the written settlement.  Shortly thereafter the divorce judgment will be drafted by one of the attorneys which judgment recites the mediation settlement.  The parties in a few weeks can meet in court to present the settlement to the judge for final approval and entry.  There is no trial thereafter. 

What happens if the case does not settle at mediation?
The case returns to the judge for further proceedings.  In the meantime the attorneys can still privately pursue settlement discussions.  The judge is not advised of any communications that occurred at mediation, nor advised which party refused to settle.  If the parties agree, the mediator can write a recommendation to the parties called “Evaluative Mediation” of any issues that remain unresolved at the conclusion of the mediation.  This written recommendation is solely for the parties use and is never submitted to the judge.  Further, neither party is subject to court sanctions for rejecting the mediator’s recommendation.

If I settle my case at mediation can I later change by mind?
No.  The mediation settlement once signed and the recording is made is final, binding and enforceable in court.  The only exception is if the mediation settlement was obtained through fraud, duress or misrepresentation (i.e. failure to fully disclosure assets, liabilities or other facts) or other limited grounds justifying relief. 

Does mediation also handle issues involving my children?
Yes.  Mediation addresses all issues.  Related thereto, Michigan law requires each county Friend of the Court to provide free or low cost mediation services for issues involving child custody and parenting time.  The Friend of the Court mediator must meet minimum qualifications to serve as a mediator and is an employee of the Friend of the Court.  Attorneys may or may not be present during the Friend of the Court mediation.  If the parties do not reach an agreement, the Friend of the Court does not prepare a report and the case is returned to the judge’s docket. 

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Most judges in Wayne, Oakland, Macomb and Washtenaw and Livingston Counties either suggest or require that the parties participate in mediation prior to trial.   In its simplest terms, mediation is where either the judge or the parties counsel select a qualified, independent, impartial person to act as a mediator (usually a local domestic relations attorney).   The mediator will meet with the parties and their counsel at the mediator’s office to discuss the issues. 

The mediator’s role is not to advocate for one party against the other but rather is to read the parties’ briefs, review any relevant documents/evidence, discuss the case with the parties and their counsel,  to find common ground, to bring the parties together in agreement and to achieve a settlement of the case. 

Accordingly, a successful mediator is one who settles your case.  However, keep in mind that a settlement is voluntary so that both parties and their counsel must agree.  If either party disagrees then the mediation ends and the case will be returned to the judge for further proceedings.