Zumeta & Johannessen - Mediator Standards of Conduct

2014 ACR ZZ/BJ Pg. 1 of 51

Association for Conflict Resolution

Many Notes, One Symphony – Conflict Engagers in Harmony

2014 Conference, Cincinnati, OH

Presentation Date: October 8, 2014 1:45 PM – 3:15 PM

“Mediator Standards of Conduct to Accompany ALL Types of Mediation”

Presenters:

Zena Zumeta, (Ann Arbor, MI)

Barbara Johannessen, (Rochester Hills, MI)

Included Resources:

New Michigan Standards of Conduct for Mediators, adopted by the

Michigan Supreme Court State Court Administrative Office

(effective February 1, 2013) Pages 2 - 10

Michigan Court Rule 2.412: Mediation Communications;

Confidentiality and Disclosures (effective September 1, 2011 and

amended May 1, 2012) Pages 11 - 12

Model Standards of Conduct (general civil) – AAA/ABA-DR/ACR

2005 Pages 13 - 21

Model Standards of Conduct for Domestic and Family Mediators –

ABA-DR/AFCC/AFM 2000 Pages 22 - 36

Former Michigan Standards of Conduct for Mediators, adopted by

the Michigan Supreme Court State Court Administrative Office

(effective January 4, 2001) Pages 37 - 38

Hartmann v Hartmann (Unpublished opinion of the Michigan Court

of Appeals, Case No. 304026, August 7, 2012) Pages 39 - 43

Vittiglio v. Vittiglio (Published opinion on the Michigan Court of

Appeals, Case No. 303724, 304823, July 31, 2012) Pages 44 - 51


M E D I A T O R S T A N D A R D S O F C O N D U C T

OFFICE OF DISPUTE RESOLUTION

State Court Administrative Office

Michigan Supreme Court

Effective February 1, 2013


Michigan Standards of Conduct for Mediators

Applicability.

These Standards of Conduct apply to cases managed under the Michigan Court Rules.

Failure to comply with an obligation or prohibition imposed by a standard is a basis for removal

of a mediator from a court roster under MCR 2.411(E)(4) and MCR 3.216(F)(4). The standards

do not give rise to a cause of action for enforcement of a rule or for damages caused by failure

to comply with an obligation or prohibition imposed by a standard. In a civil action, the

admissibility of the standards is governed by the Michigan Rules of Evidence or other

provisions of law.

Standard I. Self-Determination

A. A mediator shall conduct mediation based on the principle of party self-determination.

Self-determination is the act of coming to a voluntary, uncoerced decision in which each

party makes free and informed choices as to process and outcome, including mediator

selection, process design, and participating in or terminating the process.

1. Although party self-determination for process design is a fundamental principle of

mediation practice, a mediator may need to balance party self-determination with a

mediator’s duty to conduct a quality process in accordance with these Standards.

2. A mediator cannot personally ensure that each party has made free and informed

choices to reach particular decisions, but, where appropriate, a mediator should

make the parties aware of the importance of consulting other professionals to

help them make informed choices.

3. A mediator shall continuously assess the capacity of the parties to mediate. A

mediator shall make appropriate modifications to the process if there is concern

about a party’s ability to make voluntary and uncoerced decisions. A mediator

shall terminate the mediation process when a mediator believes a party cannot

effectively participate.

B. A mediator’s commitment is to the parties and the mediation process. A mediator shall

not undermine party self-determination for reasons such as obtaining higher settlement

rates, ego satisfaction, increased fees, or outside pressures from court personnel, program

administrators, provider organizations, or the media.

Standard II. Impartiality

A. A mediator shall conduct mediation in an impartial manner and avoid conduct that gives

the appearance of partiality. “Impartial manner” means freedom from favoritism, bias, or

prejudice in word, action or appearance, and includes a commitment to assist all

participants.

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1. A mediator should act with impartiality and without prejudice based on

any participant’s personal characteristics, background, values and beliefs, or performance during mediation.

2. A mediator should neither give nor accept a gift, favor, loan, or other item of

value that raises a question as to the mediator’s actual or perceived impartiality.

B. A mediator shall decline a mediation or withdraw from mediation if the mediator cannot

conduct it in an impartial manner, regardless of the express agreement of the parties.

Standard III. Conflicts of Interest

A. A mediator should avoid a conflict of interest or the appearance of a conflict of interest

both during and after mediation. A conflict of interest is a dealing or relationship that

could reasonably be viewed as creating an impression of possible bias or as raising a

question about the impartiality or self-interest on the part of the mediator.

B. A mediator shall make a reasonable inquiry to determine whether there are any facts

that a reasonable individual would consider likely to create a potential or actual conflict

of interest for a mediator. The duty to make reasonable inquiry is a continuing duty

during the mediation process.

C. A mediator shall promptly disclose conflicts of interest and grounds of bias or partiality

reasonably known to the mediator. A mediator should resolve all doubts in favor of

disclosure. Where possible, such disclosure should be made early in the mediation

process and in time to allow the participants to select an alternate mediator. The duty to

disclose is a continuing duty during the mediation process.

D. After disclosure, the mediator shall decline to mediate unless all parties choose to retain

the mediator. If all parties agree to mediate after being informed of conflicts, the

mediator may proceed with the mediation.

E. If a mediator’s conflict of interest could be reasonably viewed as undermining the

integrity of the mediation process, a mediator shall withdraw from or decline to proceed

with the mediation regardless of the express agreement of the parties to the contrary.

F. A mediator shall not establish another relationship with any of the participants during

the mediation process that would raise reasonable questions about the integrity of the

mediation process, or impartiality of the mediator, without the consent of all parties.

G. In considering whether establishing a personal or another professional relationship with

any of the participants after the conclusion of the mediation process might create a

perceived or actual conflict of interest, the mediator should consider factors such as

time elapsed since the mediation, consent of the parties, the nature of the relationship

established, and services offered.

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H. A mediator shall not use information about participants obtained in mediation for

personal gain or advantage.

Standard IV. Mediator Competence

A. A mediator should be qualified by training, education, or experience to undertake a

mediation. A mediator should make information regarding the mediator’s training,

education, experience, and approach to conducting mediation available to the parties.

B. If a mediator cannot conduct the mediation competently, the mediator shall advise the

parties as soon as is practicable and take appropriate steps to address the situation,

including, but not limited to, requesting appropriate assistance or withdrawing.

C. If a mediator’s ability to conduct mediation is impaired by drugs, alcohol, medication,

or otherwise, the mediator shall not conduct the mediation.

D. A mediator should attend educational and training programs, and engage in self-

assessment and peer consultation to maintain and enhance the mediator’s knowledge

and skills related to mediation.

Standard V. Confidentiality

A. Consistent with MCR 2.412, a mediator shall maintain the confidentiality of information

acquired by the mediator in the mediation process.

1. As soon as practicable and as necessary throughout the mediation process, the mediator should:

a. inform the participants of the mediator’s obligations regarding

confidentiality;

b. discuss with the parties their expectations of confidentiality; and

c. discuss confidentiality of private sessions with parties or participants

prior to those sessions occurring.

2. The mediator should include a statement concerning the obligations of

confidentiality in a written agreement to mediate.

B. If ordered or requested to testify or to produce documents, a mediator shall promptly

inform the parties or their counsel. The mediator should consider confidentiality

obligations in determining how to respond.

C. If a mediator participates in teaching, research, or evaluation of mediation, the mediator

should protect the anonymity of the parties and abide by the obligations and

agreements regarding confidentiality.

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D. If a mediator, as authorized by law, court rule, or professional code of ethics, reveals

information acquired in the mediation process, the mediator should consider the safety of persons at risk of physical harm by the release.

Standard VI. Safety of Mediation

A. Consistent with applicable statutes, court rules, and protocols, reasonable efforts shall be

made throughout the mediation process to screen for the presence of an impediment that

would make mediation physically or emotionally unsafe for any participant, or that would

impede the achievement of a voluntary and safe resolution of issues. Examples of

impediments to the mediation process include: domestic abuse; neglect or abuse of a

child; status as a protected individual or vulnerable adult; mental illness or other mental

impairment; and inability to understand or communicate in the language in which

mediation will be conducted.

1. In general, “reasonable efforts” may include meeting separately with the

parties prior to a joint session or administering screening tools.

2. In domestic relations cases, “reasonable efforts” should include meeting

separately with the parties prior to a joint session and administering the “Mediator

Screening Protocol” for domestic violence, published by the State Court

Administrative Office.

3. If an impediment to mediation exists and cannot be overcome by accommodations

that specifically mitigate it, the mediation process should not be continued unless:

a. After being provided with information about the mediation process, a

party at risk freely requests mediation or gives informed consent to it;

b. The mediator has training, knowledge, or experience to address

the impediment;

c. The mediator has discussed with the party at risk whether an attorney,

advocate, or other support person should attend the mediation; and

d. The mediator has assessed that a party can determine and safely convey

and advocate for his or her needs and interests without coercion, fear of

violence, or other repercussions or consequences that would put the party

at risk.

B. Where it appears that minor children or vulnerable adults may be affected by an

agreement, a mediator should encourage participants to consider their safety.

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Standard VII. Quality of the Process

A mediator shall conduct the mediation in a manner that protects the quality of the mediation

process.

A. Process: A mediator shall conduct mediation in accordance with these Standards and in a

manner that promotes diligence, timeliness, safety, presence of the appropriate

participants, party participation, procedural fairness, party competency, and mutual respect among all participants.

1. Diligence and timeliness. A mediator shall mediate in a diligent and timely

manner.

a. A mediator should agree to mediate only when the mediator can commit

the attention essential to an effective mediation.

b. A mediator should accept cases only when the mediator can satisfy the

reasonable expectations of the parties concerning the timing of mediation.

2. Participants and participation. A mediator shall facilitate the presence of the

appropriate participants and their understanding of the mediation process,

continuously assess the parties’ capacity to mediate, and structure the mediation

process to facilitate the parties’ ability to make decisions.

a. Subject to the provisions for accommodation in Standard VI and unless

otherwise ordered by the court, the presence or absence of persons at a

mediation should be determined by the parties and the mediator.

b. Mediation should be conducted pursuant to a written agreement to mediate

that includes the mediator’s fee, a description of the process, the role of the

mediator, and the extent of confidentiality.

c. If a party appears unable to understand or communicate in the language

in which mediation will be conducted, or appears to have difficulty

comprehending the process, issues, or settlement options, or appears to

have difficulty participating in mediation, the mediator should explore

the circumstances and potential accommodations, modifications or

adjustments that would make possible the party’s capacity to

comprehend, participate, and exercise self-determination. If the mediator

determines that a party does not have the capacity to mediate even with

accommodations, modifications or adjustments, the mediator shall not

continue the mediation process.

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3. Procedural fairness. A mediator shall conduct mediation with procedural fairness.

a. The mediator should provide participants with an overview of the process

and its purpose, including distinguishing it from other processes, the

consensual nature of mediation, the role of the mediator as an impartial

facilitator who cannot impose or force settlement, the use of joint and

separate sessions, and the extent of confidentiality.

b. A mediator who has an obligation or policy to report suspected abuse or

neglect of children or vulnerable adults should inform the participants of

the obligation or policy to report at the first contact.

c. The mediator should facilitate the acquisition, development, and

disclosure of information to promote parties’ informed decision-making.

d. A mediator shall not knowingly misrepresent any material fact or

circumstance in mediation.

e. Where appropriate, the mediator should recommend that each party obtain

independent legal advice before concluding an agreement.

4. Appropriateness of mediation. A mediator shall suspend or terminate the

mediation process when the mediator reasonably believes that a participant is

unsafe or unable to effectively participate in mediation or for other compelling

reasons.

a. If a mediator believes that mediation is being used to further illegal or

criminal conduct, a mediator should take appropriate steps including, if

necessary, postponing a mediation session, withdrawing from, or

terminating the mediation.

b. If the mediator suspends or terminates the mediation, the mediator should

take reasonable steps to minimize danger, prejudice, or inconvenience to

the parties or others that may result.

B. Role of the mediator: A mediator shall facilitate communication between the parties,

assist in identifying issues, and help explore solutions to promote a mutually

acceptable agreement. A mediator shall remain neutral as to terms of a settlement.

1. A mediator should not simultaneously act in the role of any other profession while

mediating. Acting in the role of another profession before or after mediation may

also pose a conflict of interest or affect the impartiality of a mediator.

2. A lawyer serving as a mediator shall inform unrepresented parties that the

mediator is not representing them. When the lawyer serving as mediator knows

or reasonably should know that a party does not understand the role of the

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mediator in the matter, the mediator shall explain the difference between the role

of a mediator and a lawyer’s role in representing a client.

3. A mediator should inform the participants that they may obtain independent

advice from other professionals.

4. A mediator may provide information that the mediator is qualified by training or

experience to provide if the mediator can do so consistent with these Standards.

5. Where appropriate, a mediator may recommend that parties consider other dispute

resolution processes.

6. A mediator may undertake an additional dispute resolution role in the same

matter, if the mediator:

a. informs the parties of the implications of the change in process;

b. receives the informed consent of the parties; and

c. can do so consistent with these Standards.

7. A mediator shall not conduct a dispute resolution procedure other than mediation

but label it mediation in an effort to gain the protection of rules, statutes, or other

governing authorities pertaining to mediation.

Standard VIII. Advertising and Solicitation

A. A mediator shall be truthful and not misleading when advertising, soliciting, or

otherwise communicating the mediator’s qualifications, experience, services,

and fees. A mediator shall not guarantee outcomes.

B. A mediator should not claim to meet the mediator qualifications of a governmental

entity or private organization unless that entity or organization has a recognized

procedure for qualifying mediators and it grants such status to the mediator.

C. A mediator shall not use the names of persons served, without their permission,

in promotional materials or other forms of communication.

Standard IX. Fees and Other Charges

A. A mediator shall provide each party or each party’s representative information about

mediation fees, expenses, and any other actual or potential charges that may

be incurred in connection with a mediation.

1. If a mediator charges fees, the mediator should develop them in light of all

relevant factors, including the type and complexity of the matter, the

qualifications of the mediator, and the time required.

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2. A mediator should provide fee information early in the mediation process.

3. A mediator’s fee arrangement should be in writing.

B. A mediator shall not charge or accept fees in a manner that impairs or may appear to

impair a mediator’s impartiality.

1. A mediator shall not enter into a fee agreement that is contingent upon the

result of the mediation or amount of the settlement.

2. A mediator may accept unequal fee payments from the parties unless the fee

arrangement would adversely impact the mediator’s ability to conduct a mediation

in an impartial manner.

Standard X. Advancement of Mediation Practice

A. A mediator should act in a manner that advances the practice of mediation. A

mediator promotes this standard by:

1. Fostering diversity within the field of mediation.

2. Striving to make mediation accessible to those who elect to use it,

including providing services at a reduced rate or on a pro bono basis,

as appropriate.

3. Participating in research when given the opportunity, including

obtaining participant feedback, when appropriate.

4. Participating in outreach and education efforts to assist the public

in developing an improved understanding of, and appreciation for,

mediation.

5. Assisting mediators through training, mentoring, and networking.

6. Participating in programs of self-assessment and peer consultation.

B. A mediator should demonstrate respect for differing points of view within the field,

seek to learn from other mediators, and work together with others to improve the profession and better serve people in conflict.

-- SCAO --

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Rule 2.412 Mediation Communications; Confidentiality and Disclosure

(A) Scope. This rule applies to cases that the court refers to mediation as

defined and conducted under MCR 2.411 and MCR 3.216.

(B) Definitions.

(1) “Mediator” means an individual who conducts a mediation.

(2) “Mediation communications” include statements whether oral or in a record, verbal or nonverbal, that occur during the mediation process or are made for

purposes of retaining a mediator or for considering, initiating, preparing for,

conducting, participating in, continuing, adjourning, concluding, or

reconvening a mediation.

(3) “Mediation party” means a person who or entity that participates in

a mediation and whose agreement is necessary to resolve the dispute.

(4) “Mediation participant” means a mediation party, a nonparty, an attorney for a party, or a mediator who participates in or is present at a mediation.

(5) “Protected individual” is used as defined in the Estates and

Protected Individuals Code, MCL 700.1106(v).

(6) “Vulnerable” is used as defined in the Social Welfare Act, MCL 400.11(f).

(C) Confidentiality. Mediation 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 subrule (D).

(D) Exceptions to Confidentiality. Mediation communications may be disclosed under 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)(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 or 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.

(E) Scope of Disclosure When Permitted; Limitation on Confidentiality.

(1) If a mediation communication may be disclosed under subrule (D), only

that portion of the communication necessary for the application of the exception

may be disclosed.

(2) Disclosure of a mediation communication under subrule (D) does not render the mediation communication subject to disclosure for another purpose.

(3) 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.

Effective September 1, 2011; amended effective May 1, 2012.


MODEL STANDARDS OF CONDUCT

FOR MEDIATORS

AMERICAN ARBITRATION ASSOCIATION (ADOPTED SEPTEMBER 8, 2005)

AMERICAN BAR ASSOCIATION (ADOPTED AUGUST 9, 2005)

ASSOCIATION FOR CONFLICT RESOLUTION (ADOPTED AUGUST 22, 2005)

SEPTEMBER 2005


The Model Standards of Conduct for Mediators

September 2005

The Model Standards of Conduct for Mediators was prepared in 1994 by the

American Arbitration Association, the American Bar Association’s Section of Dispute

Resolution, and the Association for Conflict Resolution1. A joint committee consisting of

representatives from the same successor organizations revised the Model Standards in

2005.2 Both the original 1994 version and the 2005 revision have been approved by each

participating organization.3

Preamble

Mediation is used to resolve a broad range of conflicts within a variety of

settings. These Standards are designed to serve as fundamental ethical guidelines for

persons mediating in all practice contexts. They serve three primary goals: to guide the

conduct of mediators; to inform the mediating parties; and to promote public confidence

in mediation as a process for resolving disputes.

Mediation is a process in which an impartial third party facilitates communication

and negotiation and promotes voluntary decision making by the parties to the dispute.

Mediation serves various purposes, including providing the opportunity for parties

to define and clarify issues, understand different perspectives, identify interests, explore

and assess possible solutions, and reach mutually satisfactory agreements, when desired.

Note on Construction

These Standards are to be read and construed in their entirety. There is no priority

significance attached to the sequence in which the Standards appear.

The use of the term “shall” in a Standard indicates that the mediator must follow

the practice described. The use of the term “should” indicates that the practice

described in the standard is highly desirable, but not required, and is to be departed

from only for very strong reasons and requires careful use of judgment and discretion.

1 The Association for Conflict Resolution is a merged organization of the Academy of Family Mediators,

the Conflict Resolution Education Network and the Society of Professionals in Dispute Resolution

(SPIDR). SPIDR was the third participating organization in the development of the 1994 Standards.

2 Reporter’s Notes, which are not part of these Standards and therefore have not been specifically approved

by any of the organizations, provide commentary regarding these revisions.

3 The 2005 revisions to the Model Standards were approved by the American Bar Association’s House of Delegates on August 9, 2005, the Board of the Association for Conflict Resolution on August 22, 2005 and

the Executive Committee of the American Arbitration Association on September 8, 2005.


The use of the term “mediator” is understood to be inclusive so that it applies to

co-mediator models.

These Standards do not include specific temporal parameters when referencing a

mediation, and therefore, do not define the exact beginning or ending of a mediation.

Various aspects of a mediation, including some matters covered by these

Standards, may also be affected by applicable law, court rules, regulations, other

applicable professional rules, mediation rules to which the parties have agreed and other

agreements of the parties. These sources may create conflicts with, and may take

precedence over, these Standards. However, a mediator should make every effort to

comply with the spirit and intent of these Standards in resolving such conflicts. This

effort should include honoring all remaining Standards not in conflict with these other

sources.

These Standards, unless and until adopted by a court or other regulatory authority

do not have the force of law. Nonetheless, the fact that these Standards have been

adopted by the respective sponsoring entities, should alert mediators to the fact that the

Standards might be viewed as establishing a standard of care for mediators.

STANDARD I. SELF-DETERMINATION

A. A mediator shall conduct a mediation based on the principle of party self-

determination. Self-determination is the act of coming to a voluntary, uncoerced

decision in which each party makes free and informed choices as to process and

outcome. Parties may exercise self-determination at any stage of a mediation,

including mediator selection, process design, participation in or withdrawal from

the process, and outcomes.

1. Although party self-determination for process design is a fundamental

principle of mediation practice, a mediator may need to balance such

party self-determination with a mediator’s duty to conduct a quality

process in accordance with these Standards.

2. A mediator cannot personally ensure that each party has made free and

informed choices to reach particular decisions, but, where appropriate, a

mediator should make the parties aware of the importance of consulting

other professionals to help them make informed choices.

B. A mediator shall not undermine party self-determination by any party for reasons

such as higher settlement rates, egos, increased fees, or outside pressures from

court personnel, program administrators, provider organizations, the media or

others.


STANDARD II. IMPARTIALITY

A. A mediator shall decline a mediation if the mediator cannot conduct it in an impartial manner. Impartiality means freedom from favoritism, bias or prejudice.

B. A mediator shall conduct a mediation in an impartial manner and avoid conduct

that gives the appearance of partiality.

1. A mediator should not act with partiality or prejudice based on any

participant’s personal characteristics, background, values and beliefs, or

performance at a mediation, or any other reason.

2. A mediator should neither give nor accept a gift, favor, loan or other

item of value that raises a question as to the mediator’s actual or

perceived impartiality.

3. A mediator may accept or give de minimis gifts or incidental items or

services that are provided to facilitate a mediation or respect cultural

norms so long as such practices do not raise questions as to a mediator’s

actual or perceived impartiality.

C. If at any time a mediator is unable to conduct a mediation in an impartial manner,

the mediator shall withdraw.

STANDARD III. CONFLICTS OF INTEREST

A. A mediator shall avoid a conflict of interest or the appearance of a conflict of

interest during and after a mediation. A conflict of interest can arise from

involvement by a mediator with the subject matter of the dispute or from any

relationship between a mediator and any mediation participant, whether past or

present, personal or professional, that reasonably raises a question of a mediator’s

impartiality.

B. A mediator shall make a reasonable inquiry to determine whether there are any

facts that a reasonable individual would consider likely to create a potential or

actual conflict of interest for a mediator. A mediator’s actions necessary to

accomplish a reasonable inquiry into potential conflicts of interest may vary based

on practice context.

C. A mediator shall disclose, as soon as practicable, all actual and potential conflicts

of interest that are reasonably known to the mediator and could reasonably be

seen as raising a question about the mediator’s impartiality. After disclosure, if

all parties agree, the mediator may proceed with the mediation.


D. If a mediator learns any fact after accepting a mediation that raises a question with

respect to that mediator’s service creating a potential or actual conflict of interest,

the mediator shall disclose it as quickly as practicable. After disclosure, if all

parties agree, the mediator may proceed with the mediation.

E. If a mediator’s conflict of interest might reasonably be viewed as undermining the

integrity of the mediation, a mediator shall withdraw from or decline to proceed

with the mediation regardless of the expressed desire or agreement of the parties

to the contrary.

F. Subsequent to a mediation, a mediator shall not establish another relationship

with any of the participants in any matter that would raise questions about the

integrity of the mediation. When a mediator develops personal or professional

relationships with parties, other individuals or organizations following a

mediation in which they were involved, the mediator should consider factors such

as time elapsed following the mediation, the nature of the relationships

established, and services offered when determining whether the relationships

might create a perceived or actual conflict of interest.

STANDARD IV. COMPETENCE

A. A mediator shall mediate only when the mediator has the necessary competence

to satisfy the reasonable expectations of the parties.

1. Any person may be selected as a mediator, provided that the parties are

satisfied with the mediator’s competence and qualifications. Training,

experience in mediation, skills, cultural understandings and other qualities

are often necessary for mediator competence. A person who offers to

serve as a mediator creates the expectation that the person is competent to

mediate effectively.

2. A mediator should attend educational programs and related activities

to maintain and enhance the mediator’s knowledge and skills related to

mediation.

3. A mediator should have available for the parties’ information relevant to

the mediator’s training, education, experience and approach to conducting

a mediation.

B. If a mediator, during the course of a mediation determines that the mediator

cannot conduct the mediation competently, the mediator shall discuss that

determination with the parties as soon as is practicable and take appropriate

stepsto address the situation, including, but not limited to, withdrawing or

requesting appropriate assistance.


C. If a mediator’s ability to conduct a mediation is impaired by drugs, alcohol,

medication or otherwise, the mediator shall not conduct the mediation.

STANDARD V. CONFIDENTIALITY

A. A mediator shall maintain the confidentiality of all information obtained by the

mediator in mediation, unless otherwise agreed to by the parties or required by

applicable law.

1. If the parties to a mediation agree that the mediator may disclose

information obtained during the mediation, the mediator may do so.

2. A mediator should not communicate to any non-participant information

about how the parties acted in the mediation. A mediator may report, if

required, whether parties appeared at a scheduled mediation and

whether or not the parties reached a resolution.

3. If a mediator participates in teaching, research or evaluation of mediation,

the mediator should protect the anonymity of the parties and abide by

their reasonable expectations regarding confidentiality.

B. A mediator who meets with any persons in private session during a mediation

shall not convey directly or indirectly to any other person, any information that

was obtained during that private session without the consent of the disclosing

person.

C. A mediator shall promote understanding among the parties of the extent to which

the parties will maintain confidentiality of information they obtain in a mediation.

D. Depending on the circumstance of a mediation, the parties may have varying

expectations regarding confidentiality that a mediator should address. The

parties may make their own rules with respect to confidentiality, or the accepted

practice of an individual mediator or institution may dictate a particular set of

expectations.

STANDARD VI. QUALITY OF THE PROCESS

A. A mediator shall conduct a mediation in accordance with these Standards and in a

manner that promotes diligence, timeliness, safety, presence of the appropriate

participants, party participation, procedural fairness, party competency and

mutual respect among all participants.


1. A mediator should agree to mediate only when the mediator is prepared to

commit the attention essential to an effective mediation.

2. A mediator should only accept cases when the mediator can satisfy the

reasonable expectation of the parties concerning the timing of a mediation.

3. The presence or absence of persons at a mediation depends on the

agreement of the parties and the mediator. The parties and mediator may

agree that others may be excluded from particular sessions or from all

sessions.

4. A mediator should promote honesty and candor between and among all

participants, and a mediator shall not knowingly misrepresent any material

fact or circumstance in the course of a mediation.

5. The role of a mediator differs substantially from other professional roles.

Mixing the role of a mediator and the role of another profession is

problematic and thus, a mediator should distinguish between the roles. A

mediator may provide information that the mediator is qualified by training

or experience to provide, only if the mediator can do so consistent with

these Standards.

6. A mediator shall not conduct a dispute resolution procedure other than

mediation but label it mediation in an effort to gain the protection of rules,

statutes, or other governing authorities pertaining to mediation.

7. A mediator may recommend, when appropriate, that parties consider

resolving their dispute through arbitration, counseling, neutral evaluation

or other processes.

8. A mediator shall not undertake an additional dispute resolution role in the

same matter without the consent of the parties. Before providing such

service, a mediator shall inform the parties of the implications of the

change in process and obtain their consent to the change. A mediator who

undertakes such role assumes different duties and responsibilities that may

be governed by other standards.

9. If a mediation is being used to further criminal conduct, a mediator should

take appropriate steps including, if necessary, postponing, withdrawing

from or terminating the mediation.

10. If a party appears to have difficulty comprehending the process, issues, or settlement options, or difficulty participating in a mediation, the mediator

should explore the circumstances and potential accommodations,

modifications or adjustments that would make possible the party’s capacity

to comprehend, participate and exercise self-determination.


B. If a mediator is made aware of domestic abuse or violence among the parties, the

mediator shall take appropriate steps including, if necessary, postponing,

withdrawing from or terminating the mediation.

C. If a mediator believes that participant conduct, including that of the mediator,

jeopardizes conducting a mediation consistent with these Standards, a mediator

shall take appropriate steps including, if necessary, postponing, withdrawing from

or terminating the mediation.

STANDARD VII. ADVERTISING AND SOLICITATION

A. A mediator shall be truthful and not misleading when advertising, soliciting or

otherwise communicating the mediator’s qualifications, experience, services

and fees.

1. A mediator should not include any promises as to outcome in

communications, including business cards, stationery, or computer-based

communications.

2. A mediator should only claim to meet the mediator qualifications of a

governmental entity or private organization if that entity or organization

has a recognized procedure for qualifying mediators and it grants such

status to the mediator.

B. A mediator shall not solicit in a manner that gives an appearance of partiality for

or against a party or otherwise undermines the integrity of the process.

C. A mediator shall not communicate to others, in promotional materials or through

other forms of communication, the names of persons served without

their permission.

STANDARD VIII. FEES AND OTHER CHARGES

A. A mediator shall provide each party or each party’s representative true and

complete information about mediation fees, expenses and any other actual or

potential charges that may be incurred in connection with a mediation.

1. If a mediator charges fees, the mediator should develop them in light of all

relevant factors, including the type and complexity of the matter, the

qualifications of the mediator, the time required and the rates customary

for such mediation services.

3. A mediator’s fee arrangement should be in writing unless the parties

request otherwise.


B. A mediator shall not charge fees in a manner that impairs a mediator’s

impartiality.

1. A mediator should not enter into a fee agreement which is contingent

upon the result of the mediation or amount of the settlement.

2. While a mediator may accept unequal fee payments from the parties,

a mediator should not use fee arrangements that adversely impact the

mediator’s ability to conduct a mediation in an impartial manner.

STANDARD IX. ADVANCEMENT OF MEDIATION PRACTICE

A. A mediator should act in a manner that advances the practice of mediation. A mediator promotes this Standard by engaging in some or all of the following:

1. Fostering diversity within the field of mediation.

2. Striving to make mediation accessible to those who elect to use it,

including providing services at a reduced rate or on a pro bono basis

as appropriate.

3. Participating in research when given the opportunity, including

obtaining participant feedback when appropriate.

4. Participating in outreach and education efforts to assist the public

in developing an improved understanding of, and appreciation for,

mediation.

5. Assisting newer mediators through training, mentoring and networking.

B. A mediator should demonstrate respect for differing points of view within the

field, seek to learn from other mediators and work together with other mediators

to improve the profession and better serve people in conflict.


Model Standards of Practice for Family and Divorce Mediation

Developed by The Symposium on Standards of Practice

August 2000

Model Standards of Practice for Family and Divorce Mediation

Overview and Definitions

Family and divorce mediation ("family mediation" or "mediation") is a process in which a mediator, an impartial third party, facilitates the resolution of family disputes by promoting the participants' voluntary agreement. The family mediator assists communication, encourages understanding and focuses the participants on their individual and common interests. The family mediator works with the participants to explore options, make decisions and reach their own agreements.

Family mediation is not a substitute for the need for family members to obtain independent legal advice or counseling or therapy. Nor is it appropriate for all families. However, experience has established that family mediation is a valuable option for many families because it can:

increase the self-determination of participants and their ability to communicate-,

promote the best interests of children; and

reduce the economic and emotional costs associated with the resolution of family disputes.


Effective mediation requires that the family mediator be qualified by training, experience and temperament; that the mediator be impartial; that the participants reach their decisions voluntarily' that their decisions be based on sufficient factual data; that the mediator be aware of the impact of culture and diversity; and that the best interests of children be taken into account. Further, the mediator should also be prepared to identify families whose history includes domestic abuse or child abuse.

These Model Standards of Practice for Family and Divorce Mediation ("Model Standards') aim to perform three major functions:

1. to serve as a guide for the conduct of family mediators;

2. to inform the mediating participants of what they can expect; and

3. to promote public confidence in mediation as a process for resolving family disputes.

The Model Standards are aspirational in character. They describe good practices for family mediators. They are not intended to create legal rules or standards of liability. The Model Standards include different levels of guidance:

use of the term "may" in a Standard is the lowest strength of guidance and indicates a practice that the family mediator should consider adopting but which can be deviated from in the exercise of good professional judgment.

Most of the Standards employ the term "should" which indicates that the practice described in the Standard is highly desirable and should be departed from only with very strong reason.

The rarer use of the term "shall" in a Standard is a higher level of guidance to the family mediator, indicating that the mediator should not have discretion to depart from the practice described.


Standard I

A family mediator shall recognize that mediation is based on the principle of self-determination by the participants.

Standard II

A family mediator shall be qualified by education and training to undertake the mediation.

Standard III

A family mediator shall facilitate the participants' understanding of what mediation is and assess their capacity to mediate before the participants reach an agreement to mediate.

Standard IV

A family mediator shall conduct the mediation process in an impartial manner. A family mediator shall disclose all actual and potential grounds of bias and conflicts of interest reasonably known to the mediator. The participants shall be free to retain the mediator by an informed, written waiver of the conflict of interest. However, if a bias or conflict of interest clearly impairs a mediator's impartiality, the mediator shall withdraw regardless of the express agreement of the participants.

Standard V

A family mediator shall fully disclose and explain the basis of any compensation, fees and charges to the participants.

Standard VI

A family mediator shall structure the mediation process so that the participants make decisions based on sufficient information and knowledge.

Standard VII

A family mediator shall maintain the confidentiality of all information acquired in the mediation process, unless the mediator is permitted or required to reveal the information by law or agreement of the participants.

Standard II


Standard VIII A family mediator shall assist participants in determining how to promote the best interests of children.

Standard IX A family mediator shall recognize a family situation involving child abuse or neglect and take appropriate steps to shape the mediation process accordingly.

Standard X

A family mediator shall recognize a family situation involving domestic abuse and take appropriate steps to shape the mediation process accordingly.

Standard XI

A family mediator shall suspend or terminate the mediation process when the mediator reasonably believes that a participant is unable to effectively participate or for other compelling reasons.

Standard XII

A family mediator shall be truthful in the advertisement and solicitation for mediation.

Standard XIII

A family mediator shall acquire and maintain professional competence in mediation.


Standard I

A family mediator shall recognize that mediation is based on the principle of self-determination by the participants.

A. Self-determination is the fundamental principle of family mediation. The mediation process relies upon the ability of participants to make their own voluntary and informed decisions.

B. The primary role of a family mediator is to assist the participants to gain a better understanding of their own needs and interests and the needs and interests of others and to facilitate agreement among the participants.

C. A family mediator should inform the participants that they may seek information and advice from a variety of sources during the mediation process.

D. A family mediator shall inform the participants that they may withdraw from family mediation at any time and are not required to reach an agreement in mediation.

E. The family mediator's commitment shall be to the participants and the process. Pressure from outside of the mediation process shall never influence the mediator to coerce participants to settle.

Standard II

A family mediator shall be qualified by education and training to undertake the mediation.

A. To perform the family mediator's role, a mediator should:

1. have knowledge of family law;

2. have knowledge of and training in the impact of family conflict on

parents, children and other participants, including knowledge of child development, domestic abuse and child abuse and neglect;

3. have education and training specific to the process of mediation,

4. be able to recognize the impact of culture and diversity.

B. Family mediators should provide information to the participants about the


mediator's relevant training, education and expertise. Standard III

A family mediator shall facilitate the participants' understanding of what mediation is and assess their capacity to mediate before the participants reach an agreement to mediate.

A. Before family mediation begins a mediator should provide the participants with an overview of the process and its purposes, including:

1. informing the participants that reaching an agreement in family mediation is consensual in nature, that a mediator is an impartial facilitator, and that a mediator may not impose or force any settlement on the parties;

2. distinguishing family mediation from other processes designed to address family issues and disputes;

3. informing the participants that any agreements reached will be reviewed by the court when court approval is required;

4. informing the participants that they may obtain independent advice from attorneys, counsel, advocates, accountants, therapists or other professionals during the mediation process;

5. advising the participants, in appropriate cases, that they can seek the advice of religious figures, elders or other significant persons in their community whose opinions they value;

6. discussing, if applicable, the issue of separate sessions with the participants, a description of the circumstances in which the mediator may meet alone with any of the participants, or with any third party and the conditions of confidentiality concerning these separate sessions;

7. informing the participants that the presence or absence of other persons at a mediation, including attorneys, counselors or advocates, depends on the agreement of the participants and the mediator, unless a statute or regulation otherwise requires or the mediator believes that the presence of another person is required or may be beneficial because of a history or threat of violence or other serious coercive activity by a participant.


8. describing the obligations of the mediator to maintain the confidentiality of the mediation process and its results as well as any exceptions to confidentiality;

9. advising the participants of the circumstances under which the mediator may suspend or terminate the mediation process and that a participant has a right to suspend or terminate mediation at any time.

B. The participants should sign a written agreement to mediate their dispute and the terms and conditions thereof within a reasonable time after first consulting the family mediator.

C. The family mediator should be alert to the capacity and willingness of the participants to mediate before proceeding with the mediation and throughout the process. A mediator should not agree to conduct the mediation if the mediator reasonably believes one or more of the participants is unable or unwilling to participate.

D. Family mediators should not accept a dispute for mediation if they cannot satisfy the expectations of the participants concerning the timing of the process.

Standard IV

A family mediator shall conduct the mediation process in an impartial manner. A family mediator shall disclose all actual and potential grounds of bias and conflicts of interest reasonably known to the mediator. The participants shall be free to retain the mediator by an informed, written waiver of the conflict of interest. However, if a bias or conflict of interest clearly impairs a mediator's impartiality, the mediator shall withdraw regardless of the express agreement of the participants.

A. Impartiality means freedom from favoritism or bias in word, action or appearance, and includes a commitment to assist all participants as opposed to any one individual.

B. Conflict of interest means any relationship between the mediator, any participant or the subject matter of the dispute, that compromises or appears to compromise the mediator's impartiality.

C. A family mediator should not accept a dispute for mediation if the family mediator cannot be impartial.


D. A family mediator should identify and disclose potential grounds of bias or conflict of interest upon which a mediator's impartiality might reasonably be questioned. Such disclosure should be made prior to the start of a mediation and in time to allow the participants to select an alternate mediator.

E. A family mediator should resolve all doubts in favor of disclosure. All disclosures should be made as soon as practical after the mediator becomes aware of the bias or potential conflict of interest. The duty to disclose is a continuing duty.

F. A family mediator should guard against bias or partiality based on the participants' personal characteristics, background or performance at the mediation.

G. A family mediator should avoid conflicts of interest in recommending the services of other professionals.

H. A family mediator shall not use information about participants obtained in a mediation for personal gain or advantage.

I. A family mediator should withdraw pursuant to Standard IX if the mediator believes the mediator's impartiality has been compromised or a conflict of interest has been identified and has not been waived by the participants.

Standard V

A family mediator shall fully disclose and explain the basis of any compensation, fees and charges to the participants.

A. The participants should be provided with sufficient information about fees at the outset of mediation to determine if they wish to retain the services of the mediator.

B. The participants' written agreement to mediate their dispute should include a description of their fee arrangement with the mediator.

C. A mediator should not enter into a fee agreement which is contingent upon the results of the mediation or the amount of the settlement.

D. A mediator should not accept a fee for referral of a matter to another mediator or to any other person.


E . Upon termination of mediation a mediator should return any unearned fee to the participants.

Standard VI

A family mediator shall structure the mediation process so that the participants make decisions based on sufficient information and knowledge.

A. The mediator should facilitate full and accurate disclosure and the acquisition and development of information during mediation so that the participants can make informed decisions. This may be accomplished by encouraging participants to consult appropriate experts.

B. Consistent with standards of impartiality and preserving participant self-determination, a mediator may provide the participants with information that the mediator is qualified by training or experience to provide. The mediator shall not provide therapy or legal advice.

C . The mediator should recommend that the participants obtain independent legal representation before concluding an agreement.

D. If the participants so desire, the mediator should allow attorneys, counsel or advocates for the participants to be present at the mediation sessions.

E. With the agreement of the participants, the mediator may document the participants' resolution of their dispute. The mediator should inform the participants that any agreement should be reviewed by an independent attorney before it is signed.

Standard VII

A family mediator shall maintain the confidentiality of all information acquired in the mediation process, unless the mediator is permitted or required to reveal the information by law or agreement of the participants.

A. The mediator should discuss the participants’ expectations of confidentiality with them prior to undertaking the mediation. The written agreement to mediate should include provisions concerning confidentiality.

B. Prior to undertaking the mediation the mediator should inform the participants of the limitations of confidentiality such as statutory, judicially or ethically mandated reporting.

A family mediator shall assist participants in


C. The mediator shall disclose a participant’s threat of suicide or violence against any person to the threatened person and the appropriate authorities if the mediator believes such threat is likely to be acted upon as permitted by law.

D. If the mediator holds private sessions with a participant, the obligations of confidentiality concerning those sessions should be discussed and agreed upon prior to the sessions.

E. If subpoenaed or otherwise noticed to testify or to produce documents the mediator should inform the participants immediately. The mediator should not testify or provide documents in response to a subpoena without an order of the court if the mediator reasonably believes doing so would violate an obligation of confidentiality to the participants.

Standard VIII

A family mediator shall assist participants in determining how to promote the best interests of children.

A. The mediator should encourage the participants to explore the range of options available for separation or post-divorce parenting arrangements and their respective costs and benefits. Referral to a specialist in child development may be appropriate for these purposes. The topics for discussion may include, among others:

1. information about community resources and programs that can help the participants and their children cope with the consequences of family reorganization and family violence;

2. problems that continuing conflict creates for children's development and what steps might be taken to ameliorate the effects of conflict on the children;

3. development of a parenting plan that covers the children's physical residence and decision-making responsibilities for the children, with appropriate levels of detail as agreed to by the participants;

4. the possible need to revise parenting plans as the developmental needs of the children evolve over time; and

5. encouragement to the participants to develop appropriate dispute resolution mechanisms to facilitate future revisions of the parenting


plan.

B. The mediator should be sensitive to the impact of culture and religion on parenting philosophy and other decisions.

C. The mediator shall inform any court-appointed representative for the

children of the mediation. If a representative for the children participates, the mediator should, at the outset, discuss the effect of that participation on the mediation process and the confidentiality of the mediation with the participants. Whether the representative of the children participates or not, the mediator shall provide the representative with the resulting agreements insofar as they relate to the children.

D. Except in extraordinary circumstances, the children should not participate in the mediation process without the consent of both parents and the children's court-appointed representative.

E. Prior to including the children in the mediation process, the mediator should consult with the parents and the children's court-appointed representative about whether the children should participate in the mediation process and the form of that participation.

F. The mediator should inform all concerned about the available options for the children's participation (which may include personal participation, an interview with a mental health professional, or the mediator reporting to the parents, or a videotape statement) and discuss the costs and benefits of each with the participants.

Standard IX

A family mediator shall recognize a family situation involving child abuse or neglect and take appropriate steps to shape the mediation process accordingly.

A. As used in these Standards, child abuse or neglect is defined by applicable state law.

B A mediator shall not undertake a mediation in which the family situation has been assessed to involve child abuse or neglect without appropriate and adequate training.

C. If the mediator has reasonable grounds to believe that a child of the participants is abused or neglected within the meaning of the jurisdiction's


child abuse and neglect laws, the mediator shall comply with applicable child protection laws.

1. The mediator should encourage the participants to explore appropriate services for the family.

2. The mediator should consider the appropriateness of suspending or terminating the mediation process in fight of the allegations.

Standard X

A family mediator shall recognize a family situation involving domestic abuse and take appropriate steps to shape the mediation process accordingly.

A. As used in these Standards, domestic abuse includes domestic violence as defined by applicable state law and issues of control and intimidation.

B. A mediator shall not undertake a mediation in which the family situation has been assessed to involve domestic abuse without appropriate and adequate training.

C. Some cases are not suitable for mediation because of safety, control or intimidation issues. A mediator should make a reasonable effort to screen for the existence of domestic abuse prior to entering into an agreement to mediate. The mediator should continue to assess for domestic abuse throughout the mediation process.

D. If domestic abuse appears to be present the mediator shall consider taking measures to insure the safety of participants and the mediator including, among others:

1. establishing appropriate security arrangements;

2. holding separate sessions with the participants even without the agreement of all participants;

3. allowing a friend, representative, advocate, counsel or attorney to attend the mediation sessions;

4. encouraging the participants to be represented by an attorney, counsel or an advocate throughout the mediation process;

5. referring the participants to appropriate community resources;


6. suspending or terminating the mediation sessions, with appropriate steps to protect the safety of the participants.

E. The mediator should facilitate the participants' formulation of parenting plans that protect the physical safety and psychological well-being of themselves and their children.

Standard XI

A family mediator shall suspend or terminate the mediation process when the mediator reasonably believes that a participant is unable to effectively participate or for other compelling reasons.

A. Circumstances under which a mediator should consider suspending or terminating the mediation, may include, among others:

1. the safety of a participant or well-being of a child is threatened,

2. a participant has or is threatening to abduct a child;

3. a participant is unable to participate due to the influence of drugs, alcohol, or physical or mental condition;

4. the participants are about to enter into an agreement that the mediator reasonably believes to be unconscionable;

5. a participant is using the mediation to further illegal conduct;

6. a participant is using the mediation process to gain an unfair advantage;

7. if the mediator believes the mediator's impartiality has been compromised in accordance with Standard IV.

B. If the mediator does suspend or terminate the mediation, the mediator should take all reasonable steps to minimize prejudice or inconvenience to the participants which may result.

Standard XII

A family mediator shall be truthful in the advertisement and solicitation for mediation.


A. Mediators should refrain from promises and guarantees of results. A mediator should not advertise statistical settlement data or settlement rates.

B. Mediators should accurately represent their qualifications. In an advertise-ment or other communication, a mediator may make reference to meeting state, national, or private organizational qualifications only if the entity referred to has a procedure for qualifying mediators and the mediator has been duly granted the requisite status.

Standard XIII

A family mediator shall acquire and maintain professional competence in mediation.

A. Mediators should continuously improve their professional skills and abilities by, among other activities, participating in relevant continuing education programs and should regularly engage in self-assessment.

B. Mediators should participate in programs of peer consultation and should help train and mentor the work of less experienced mediators.

C. Mediators should continuously strive to understand the impact of culture and diversity on the mediator's practice.

Appendix: Special Policy Considerations for

State Regulation of Family Mediators and Court Affiliated Programs

The Model Standards recognize the National Standards for Court Connected Dispute Resolution Programs (1992). There are also state and local regulations governing such programs and family mediators. The following principles of organization and practice, however, are especially important for regulation of mediators and court-connected family mediation programs. They are worthy of separate mention.

A. Individual states or local courts should set standards and qualifications for family mediators including procedures for evaluations and handling grievances against mediators. In developing these standards and qualifications, regulators should consult with appropriate professional groups, including


professional associations of family mediators.

B. When family mediators are appointed by a court or other institution, the appointing agency should make reasonable efforts to insure that each mediator is qualified for the appointment. If a list of family mediators qualified for court appointment exists, the requirements for being included on the list should be made public and available to all interested persons.

C. Confidentiality should not be construed to limit or prohibit the effective monitoring, research, evaluation or monitoring of mediation programs by responsible individuals or academic institutions provided that no identifying information about any person involved in the mediation is disclosed without their prior written consent. Under appropriate circumstances, researchers may be permitted to obtain access to statistical data and, with the permission of the participants, to individual case files, observations of live mediations, and interviews with participants.


Michigan Supreme Court

State Court Administrative Office

Standards of Conduct for Mediators (effective August 2001- January 2013)

(1) Introduction. These standards of conduct apply to all persons who act as a mediator pursuant to

the dispute resolution programs of the court. They are designed to promote honesty, integrity, and

impartiality in providing court-connected dispute resolution services. These standards shall be

made a part of all training and educational requirements for court-connected programs, shall be

provided to all mediators involved in court-connected programs and shall be available to the

public.

(2) Self-Determination. A mediator shall recognize that mediation is based upon the principle of

self-determination by the parties. This principle requires that the mediation process rely upon the

ability of the parties to reach a voluntary, uncoerced agreement.

(3) Impartiality. A mediator shall conduct the mediation in an impartial manner. The concept of

mediator impartiality is central to the mediation process. A mediator shall mediate only those

matters in which it is possible to remain impartial and even-handed. If at any time the mediator is

unable to conduct the process in an impartial manner, the mediator is obligated to withdraw.

(4) Conflict of Interest.

(a) A conflict of interest is a dealing or relationship that might create an impression of

possible bias or could reasonably be seen as raising a question about impartiality. A

mediator shall promptly disclose all actual and potential conflicts of interest reasonably

known to the mediator. After disclosure, the mediator shall decline to mediate unless

all parties choose to retain the mediator. If all parties agree to mediate after being

informed of conflicts, the mediator may proceed with the mediation unless the conflict

of interest casts serious doubts on the integrity of the process, in which case the

mediator shall decline to proceed.

(b) The need to protect against conflicts of interest also governs conduct that occurs during

and after the mediation. A mediator must avoid the appearance of conflict of interest

both during and after the mediation. Without the consent of all parties, a mediator shall

not subsequently establish a professional relationship with one of the parties in a

related matter, or in an unrelated matter under circumstances that would raise

legitimate questions about the integrity of the mediation process. A mediator shall not

establish a personal or intimate relationship with any of the parties that would raise

legitimate questions about the integrity of the mediation process.

(5) Confidentiality. Statements made during the mediation, including statements made in written

submissions, may not be used in any other proceedings, including trial. Any communications

between the parties or counsel and the mediator relating to a mediation are confidential and shall

not be disclosed without the written consent of all parties. This prohibition does not apply to:

(a) the report of the mediator under subrule MCR 2.411(C)(3) or 3.216(H)(6),


(b) information reasonably required by court personnel to administer and evaluate the

mediation program,

(c) information necessary for the court to resolve disputes regarding the mediator’s fee, or

(d) information necessary for the court to consider issues raised under MCR 2.410(D)(3) or

3.216(H)(2).

(6) Competence. A mediator shall mediate only when the mediator has the necessary qualifications

to satisfy the reasonable expectations of the parties. Mediators assigned by the court are required

to have the training and experience specified by court rule.

(7) Quality of the Process. A mediator shall conduct the mediation fairly and diligently. A

mediator shall work to ensure a quality process and to encourage mutual respect among the parties.

A quality process requires a commitment by the mediator to diligence and procedural fairness.

There should be adequate opportunity for each party in the mediation to participate in the

discussions. The parties decide when and under what conditions they will reach an agreement or

terminate a mediation.

(8) Advertising and Solicitation. A mediator shall be truthful in advertising and solicitation for

mediation. Advertising or any other communication with the public concerning services offered or

regarding the education training and expertise of the mediator shall be truthful. Mediators shall

refrain from promises and guarantees of results.

(9) Fees. A mediator shall fully disclose and explain the basis of compensation, fees, and charges

to the parties. The parties should be provided sufficient information about fees at the outset of a

mediation to determine if they wish to retain the services of a mediator or to object to mediation.

Any fees charged by a mediator shall be reasonable, considering, among other things, the

mediation services, the type and complexity of the matter, the expertise of the mediator, the time

required, and the rates customary to the community.

(10) Obligations to the Mediation Process. Mediators have a duty to improve the practice of

mediation by helping educate the public about mediation, making mediation accessible to those

who would like to use it, correcting abuses, and improving their professional skills and abilities.

[Effective January 4, 2001] 2001 Staff Comment These Standards of Conduct were proposed by the

Michigan Supreme Court Dispute Resolution Task Force in its January, 2000 Recommendations to the

Michigan Supreme Court. The Standards derive principally from the Model Standards of Conduct for

Mediators developed by delegates of the American Bar Association, Society of Professionals in Dispute

Resolution, and American Arbitration Association.


S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

MICHAEL HARTMAN, UNPUBLISHED

August 7, 2012

Plaintiff-Appellant,

v No. 304026

Oakland Circuit Court

ANDREA HARTMAN, LC No. 2009-764033-DM

Defendant-Appellee.

Before: DONOFRIO, P.J., and RONAYNE KRAUSE and BOONSTRA, JJ.

PER CURIAM.

Plaintiff appeals as of right the trial court’s refusal to set aside a settlement agreement

and judgment of divorce on the basis of apparent impropriety committed by the

arbitrator/mediator and defense counsel. The trial court properly declined to set aside the

settlement agreement and judgment of divorce. Therefore, we affirm.

FACTS AND PROCEDURAL HISTORY

This case arose out of a divorce action terminating a 23-year marriage. The parties were

ordered to mediation. The parties agreed to a mediator and when mediation failed, the parties

agreed to binding arbitration using the mediator as the arbitrator. In accordance with the signed

arbitration agreement the arbitrator issued some awards covering minor issues. But before final

arbitration on the major issues, the parties agreed to again attempt to mediate the divorce and

reach a settlement agreement utilizing the services of the arbitrator as a mediator. Mediation

failed.

The parties did reach a settlement agreement. However, what took place during the course

of this mediation is disputed between the parties. Plaintiff asserts that the mediator made

statements regarding her feelings about the case. Knowing her feelings and the fact that she would

also be the arbitrator, plaintiff proposed the settlement, feeling that he had no real choice.

Defendant asserts that the mediator actually had an “informal” role throughout the proceeding,

and it was plaintiff and his representatives who proposed the final agreement. Regardless, a

settlement agreement was drafted and signed.

By the date set for entry of the final judgment of divorce, even though both parties had

reached a settlement agreement, a few issues were still outstanding. At the hearing, plaintiff asked

his counsel to state on the record that he had concerns about the arbitrator acting as a

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neutral third party. While he did not ask to have the settlement agreement set aside, he wanted it

on the record that he had “had concerns about . . . the mediation being done by the arbitrator.”

The nature of those concerns was not further articulated.

Because of the outstanding issues, the judge originally wanted to continue the matter for

two weeks, but defense counsel stated that he was going to be out of town. Therefore, the final

judgment was continued for four weeks. Plaintiff’s counsel contacted the arbitrator to inform her

of the dates. The arbitrator informed plaintiff’s counsel that she was also going to be out of town

in Florida and staying at the home of defense counsel while he would also be present. Plaintiff’s

counsel then contacted defense counsel to request a new arbitrator to handle the remaining

issues. Defense counsel refused the request. While the arbitrator and defense counsel were in

Florida, defense counsel contacted plaintiff’s counsel via fax threatening to ask the arbitrator to

ask the court for sanctions.

Thereafter, plaintiff’s counsel filed a motion to remove the arbitrator and have a new one

assigned. Defendant responded by stating that the arbitration awards were a moot point because a

settlement had been reached. Plaintiff then filed an amended motion to remove the arbitrator and

obtain relief from the settlement agreement. Defense counsel argued that he felt what occurred

between himself and the arbitrator was no more than ordinary hospitality and that numerous

attorneys, including judges, have stayed at his Florida home. The trial court ultimately denied

plaintiff’s motion, stating that there was no appearance of impropriety because the parties

ultimately reached a settlement agreement and that the trip to Florida occurred 30 days after the

mediation. The final issues were resolved by the trial court, and a judgment of divorce was

entered.

STANDARD OF REVIEW

Plaintiff argues that the issue is whether the court erred in refusing to review an

arbitrator’s award. However, it is truly only about setting aside a settlement agreement.

Therefore, plaintiff is incorrect in arguing that this Court must review the award de novo.

Instead, the trial court’s decision regarding the validity of a consent settlement agreement is

reviewed for an abuse of discretion. Lentz v Lentz, 271 Mich App 465, 474-475; 721 NW2d 861

(2006). An abuse of discretion is found to have occurred “when the trial court’s decision is

outside the range of reasonable and principled outcomes.” Shawl v Spence Bros, Inc, 280 Mich

App 213, 222; 760 NW2d 674 (2008).

THE CONSENT SETTLEMENT AGREEMENT

Generally, parties are bound by their settlement agreement, unless there is a showing of

“fraud, duress, [or] mutual mistake.” Keyser v Keyser, 182 Mich App 268, 269-270; 451 NW2d

587 (1990) (internal citations omitted). Plaintiff argues that the contract between the parties

should be set aside due to fraudulent misrepresentation, mutual mistake, violation of public

policy, and unconscionability.

In order to set aside an agreement for fraudulent misrepresentation, plaintiff must prove

that “(1) defendant made a material representation; (2) the representation was false; (3) defendant

knew, or should have known, that the representation was false when making it; [and]

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(4) defendant made the representation with the intent that plaintiff rely on it . . . ” Foreman v

Foreman, 266 Mich App 132, 141; 701 NW2d 167 (2005). Plaintiff argues that the false

representation was that the arbitrator was neutral; however, plaintiff does not substantiate this

argument with any evidence to prove that she actually acted with clear bias. As discussed below,

there is no evidence of actual bias.

Next, plaintiff argues that a mistake of fact also mandates a reversal of the lower court’s

decision. This Court explained in Casey v Auto Owners Ins Co, 273 Mich App 388, 398; 729

NW2d 277 (2006) that in order to reform the contract, plaintiff must “prove a mutual mistake of

fact, or mistake on one side and fraud on the other, by clear and convincing evidence.” This

Court also explained that a unilateral mistake alone is not sufficient. Id. While plaintiff argues

that the mistake involved is that the arbitrator was impartial and that there was no social

relationship between the arbitrator and defense counsel, this alleged mistake is unilateral and,

therefore, not enough to warrant a reversal. Again, plaintiff has not provided evidence to prove

that what occurred between the arbitrator and defense counsel rises to the level of clear actual

partiality.

Next, plaintiff correctly points out that if we were to find that the contract violated

public policy, it would be unenforceable. This Court explained this principle in Morris &

Doherty, PC v Lockwood, 259 Mich App 38, 58; 672 NW2d 884 (2003), stating “that contracts

that violate our ethical rules violate our public policy and therefore are unenforceable” (internal

citations omitted). However, we would have to find a clear violation of the Michigan Rules of

Professional Conduct (MRPC). Plaintiff argues that MRPC 8.4 was violated. Under MRPC

8.4(b), a violation can occur when an attorney “engage[s] in conduct involving dishonesty,

fraud, deceit, misrepresentation, or violation of criminal law.” Plaintiff has failed to show that

any of the enumerated circumstances happened. Plaintiff’s counsel admitted at oral argument

that he had referred neither defense counsel nor the arbitrator to the Attorney Grievance

Commission. Therefore, because it is unclear that a violation of the ethical rules did occur, this

argument lacks merit.

Lastly, plaintiff’s unconscionability argument only addresses half of the requirements

for setting aside an argument on that basis. While plaintiff makes an argument for procedural

unconscionability, he lacks any argument as to substantive unconscionability. Plaintiff has

failed to argue or show this Court how he would have obtained a different result. He has also

failed to show how the outcome was prejudiced or unfair. Both procedural and substantive

unconscionability must be present in order for a contract to be set aside for it being

unconscionable. Clark v DaimlerChrysler Corp, 268 Mich App 138, 143; 706 NW2d 741

(2005).

The procedural unconscionability is essentially the conduct of the arbitrator and defense

counsel. MCR 3.216(k) governs the standard of conduct for mediation. It states that “[t]he State

Court Administrator [(SCAO)] shall develop and approve standards of conduct for domestic

relations mediators designed to promote honesty, integrity and impartiality in providing court-

connected dispute resolution services.” The SCAO’s Standard of Conduct for Mediators

emphasizes not only the importance of remaining impartial, but also the importance of appearing

impartial. Under Standard 4, “conflicts of interests,” it states that a conflict can occur if it can

“reasonably be seen as raising a question about impartiality.” Standard 3, “Impartiality” states

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that, “if at any time the mediator is unable to conduct the process in an impartial manner, the

mediator is obligated to withdraw.”

There is no case law directly on point dealing with an appearance of partiality by an

arbitrator or mediator under similar circumstances to those at bar. However, the Michigan Court

Rules state that “the rule for disqualification of a mediator is the same as that provided in MCR

2.003 for the disqualification of a judge.” MCR 3.216(E). MCR 2.003(C)(1) states that a judge

should be disqualified if a judge “has failed to adhere to the appearance of impropriety standard

set for in Canon 2 of the Michigan Code of Judicial Conduct.” Canon 2 states that,

“A. Public confidence in the judiciary is eroded by irresponsible or improper

conduct by judges. A judge must avoid all impropriety and appearance of

impropriety. A judge must expect to be the subject of constant public scrutiny. A

judge must therefore accept restrictions on conduct that might be viewed as

burdensome by the ordinary citizen and should do so freely and willingly.” [Code

of Judicial Conduct, Canon 2]

This Court has held that actual bias or prejudice is not necessary where “experience

teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to

be constitutionally tolerable.” Gates v Gates, 256 Mich App 420, 441; 664 NW2d 231 (2003)

(internal citations omitted). The Supreme Court in Cain v Michigan Dep’t of Corrections, 451

Mich 470, 536 n 22; 548 NW2d 210 (1996), clarified that while an actual showing of prejudice

or bias is the general standard, “the appearance of impropriety may be sufficient to disqualify a

judge after evaluation of the totality of the circumstances.” Id.

The totality of the circumstances in the case at bar rises to a level that would have

required the arbitrator to be removed from arbitrating or mediating the remaining matters.

However, the final matters that remained outstanding at the time of the arbitrator’s and

defense counsel’s vacation together were settled by the judge. The arbitration awards issued

before the settlement agreement became moot because the settlement agreement handled those

matters. The only issue not moot is whether the settlement agreement can be set aside. We

find that it cannot.

Plaintiff has failed to show that he would have received a different result if not for the

social relationship between the arbitrator and defense counsel. This Court will not consider an

argument that has not been sufficiently developed. “An appellant may not merely announce his

position and leave it to this Court to discover and rationalize the basis for his claims, nor may he

give only cursory treatment with little or no citation of supporting authority.” People v Payne,

285 Mich App 181, 195; 774 NW2d 714 (2009). Plaintiff simply fails to present a sufficiently

developed or supported argument as to substantive unconscionability and, therefore, has waived

this argument on appeal. Phillips v Jordan, 241 Mich App 17, 24 n 2; 614 NW2d 183 (2000).

Because none of the requirements to set aside a settlement agreement have been met, the

decision of the lower court to uphold the agreement is affirmed.

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Affirmed.

/s/ Pat M. Donofrio

/s/ Amy Ronayne Krause

/s/ Mark T. Boonstra


STATE OF MICHIGAN

COURT OF APPEALS

CYNTHIA NEAL VITTIGLIO, FOR PUBLICATION

July 31, 2012

Plaintiff-Appellant, 9:00 a.m.

v Nos. 303724; 304823

Oakland Circuit Court

THOMAS ANTHONY VITTIGLIO, LC No. 2010-774722-DO

Defendant-Appellee.

Before: K.F.KELLY, P.J., and SAWYERand RONAYNE KRAUSE, JJ.

RONAYNE KRAUSE,J.

These consolidated appeals arise out of a judgment of divorce entered pursuant to a

settlement agreement reached between the parties during mediation. After the settlement was

reached and before the judgment was entered, plaintiff sought to disavow and set aside the

settlement and dismiss the case. The trial court denied plaintiff’s motions to do so and, pursuant

to its finding that the motive behind the motion was frivolous, awarded sanctions to defendant. In

Docket No. 303724 plaintiff appeals as of right from the judgment of divorce, and in Docket No.

304823 plaintiff appeals as of right from the trial court’s award of sanctions. We affirm.

The parties were married in 1988 and had no children together. Plaintiff filed for divorce

in 2010. The parties proceeded to mediation on January 26, 2011. The mediation culminated in

an audio recording of a settlement agreement as to all issues in the matter. The parties’

attorneys stated on the recording that it had accurately described the agreement and covered

everything. Both parties agreed that they understood everything recorded and agreed to all of

the terms as full, final, and binding. However, when defendant moved to enforce the settlement

agreement and for entry of the divorce judgment, plaintiff refused to sign the consent judgment

and sought to disavow the agreement. Defendant subsequently sought to recover from plaintiff

all of his costs incurred in maintaining the status quo beyond the date specified in the

agreement and attorney fees. Plaintiff sought to dismiss the action, which the trial court denied.

The trial court entered a judgment of divorce and ordered the settlement agreement recorded at

mediation to be merged and incorporated into that judgment. The trial court also found

plaintiff’s attempts to disavow the settlement agreement and to dismiss the case were frivolous,

and it awarded defendant sanctions.

Plaintiff first argues on appeal that the trial court erred in finding the audio recorded

settlement agreement binding, arguing that although mediation may culminate in a settlement

agreement that will be binding if “acknowledged by the parties on an audio or video recording,”

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MCR 3.216(H)(7), that process is only available in “domestic relations cases, as defined in MCL

552.502(l).1” MCR 3.216(A)(1). Plaintiff argues that this is not a “domestic relations case”

pursuant to that definition, so MCR 2.507(G) requires binding settlements to be made in writing

or placed on the record in open court. Plaintiff additionally argues that the statute of frauds, see

MCL 566.106, MCL 566.108, and MCL 566.132, precludes enforcement of the settlement

agreement. We disagree with plaintiff’s arguments.

“The finding of the trial court concerning the validity of the parties’ consent to a

settlement agreement will not be overturned absent a finding of an abuse of discretion.” Keyser

v Keyser, 182 Mich App 268, 270; 451 NW2d 587 (1990). “The construction and application

of a court rule are questions of law that we review de novo on appeal.” Kloian v Domino’s

Pizza, LLC, 273 Mich App 449, 456; 733 NW2d 766 (2006). We review the factual findings

underlying a trial court’s application of a court rule for clear error. Johnson Family Ltd

Partnership v White Pine Wireless, LLC, 281 Mich App 364, 387; 761 NW2d 353 (2008);

MCR 2.613(C).

“Domestic relations matter[s]” include circuit court proceedings as to, among other things,

spousal support, arising “out of litigation under a statute of this state, including, but not limited to

. . . MCL 552.1 to 552.45.” MCL 552.502(m)(i). Plaintiff sought an award of permanent spousal

support in her complaint for divorce, spousal support was identified as a disputed issue in the

scheduling order that referred the case to mediation, and spousal support was addressed and

decided in the recording of the parties’ settlement agreement. Furthermore, MCL 552.19 and

MCL 552.23 address property division in divorce actions. Consequently, it is clear that this

proceeding is a “domestic relations matter” as defined by MCL 552.502(m) and therefore as

defined by MCR 3.216. Accordingly, we reject plaintiff’s argument that MCR 3.216 does not

apply to the settlement in this case.2 The parties equally unambiguously acknowledged the

agreement in the audio recording, as required by MCR 3.216(H)(7).

We likewise reject plaintiff’s statute of frauds argument. The property settlement

involved the parties’ interest in lands, so we agree that it is subject to the statute of frauds.

However, MCL 556.106 provides that, as an alternative to “a deed or conveyance in writing,” an

estate or interest in lands may also be conveyed “by act or operation of law.” MCR 3.216(H)(7)

provides that terms of a settlement reached as a result of mediation are binding if (1) reduced to

a signed writing or (2) acknowledged by the parties on an audio or video recording. The parties

acknowledged their settlement agreement on an audio recording, which is one of the options set

out in MCR 3.216(H)(7) for making their settlement binding. Consequently, the property

settlement occurred “by act or operation of law” when the parties acknowledged their settlement

on a recording. The statute of frauds was not violated.

1 This statutory provision is now MCL 552.502(m).

2 We additionally observe that plaintiff failed to comply with the procedure specified by MCR

3.216(D)(1) for objecting to mediation.


“[S]ettlement agreements should not normally be set aside and . . . once a settlement

agreement is reached a party cannot disavow it merely because [s]he has had ‘a change of

heart.’” Metro Life Ins Co v Goolsby, 165 Mich App 126, 128; 418 NW2d 700 (1987). Courts

must uphold divorce property settlements reached through negotiation and agreement of the

parties because modifications of property settlements in divorce judgments are disfavored.

Baker v Baker, 268 Mich App 578, 586; 710 NW2d 555 (2005). “This rule applies whether the

settlement is in writing and signed by the parties or their representatives or the settlement is

orally placed on the record and consented to by the parties, even though not yet formally

entered as part of the divorce judgment by the lower court.” Keyser, 182 Mich App at 270.

Here, the parties made their settlement binding by acknowledging it on an audio recording as

provided in MCR 3.216(H)(7). The trial court did not err in finding that the parties reached a

binding settlement agreement.

Plaintiff relatedly argues that the trial court erred by failing to set aside the settlement

agreement under well-established contract principles. Plaintiff argues that she did not actually

consent to the settlement agreement because (1) defendant had threatened her life in the past and

she developed an extreme fear of him; (2) the mediator and her attorney told her that the

settlement offer was greater than what she would receive at a trial; and (3) she felt “severely

betrayed” because her attorney negotiated a $50,000 payment for attorney fees. We find no merit

to her arguments.

“It is a well-settled principle of law that courts are bound by property settlements reached

through negotiations and agreement by parties to a divorce action, in the absence of fraud,

duress, mutual mistake, or severe stress which prevented a party from understanding in a

reasonable manner the nature and effect of the act in which she was engaged.” Keyser, 182 Mich

App at 269-270; see also Calo v Calo, 143 Mich App 749, 753-754; 373 NW2d 207 (1985).

However, the parties must have actually consented. Howard v Howard, 134 Mich App 391, 397;

352 NW2d 280 (1984). “The finding of the trial court concerning the validity of the parties’

consent to a settlement agreement will not be overturned absent a finding of an abuse of

discretion.” Keyser, 182 Mich App at 270. A trial court’s factual findings are reviewed for clear

error. Smith v Smith, 278 Mich App 198, 204; 748 NW2d 258 (2008). The trial court did not

conduct an evidentiary hearing on plaintiff’s claims that she did not actually consent, but the

trial court was not obligated to because plaintiff never requested one. See Mitchell v Mitchell,

198 Mich App 393, 399-400; 499 NW2d 386 (1993).

Plaintiff averred in an affidavit that defendant had threatened to kill her on more than one

occasion in the past. However, the settlement agreement was reached through mediation, during

which plaintiff was represented by counsel and the mediator conducted “shuttle diplomacy,”

which entailed the parties not even being in the same room.3 Plaintiff never claimed that

3 The Supreme Court Administrative Office (SCAO)’s Standards of Conduct for Mediators do not

specify any particular manner for handling mediation where domestic violence or control exists.

However, the SCAO’s Model Screening Protocol for domestic relations mediation where

domestic violence or control exists contains a number of suggestions for keeping parties safe,

accommodated, and capable of negotiating and making decisions free from fear or coercion. It

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defendant threatened her into agreeing to the settlement. The day after she filed an affidavit

relating her extreme fear of defendant, she moved to dismiss on the ground that she wished to

reconcile with defendant. While these two things are not necessarily mutually exclusive, and we

recognize that extricating one’s self from a domestic violence situation is often exceedingly

difficult and sometimes fraught with actions seemingly baffling to outsiders, under the particular

circumstances of this specific case, we find no support in the record for plaintiff’s claim that

defendant’s prior threats affected the validity of her consent to the settlement agreement.

Plaintiff also averred in her affidavit that the mediator and her attorney repeatedly told her

that the proposed settlement was better than what she could expect at a trial. When a party to a

consent judgment argues that consent was achieved through duress or coercion practiced by her

attorney, the judgment will not be set aside absent a showing that the other party participated in

the duress or coercion. Howard, 134 Mich App at 397; Grand Rapids Growers, Inc v Old Kent

Bank & Trust Co, 99 Mich App 128, 129-130; 297 NW2d 633 (1980). There is no indication that

defendant was involved in any communication to plaintiff of a supposed advantage of settling

the case instead of proceeding to trial. There is also no basis for disturbing the trial court’s

finding that plaintiff was an educated and intelligent person represented by an experienced

attorney before an experienced mediator. We further agree with the trial court’s observation that

a certain amount of pressure to settle is fundamentally inherent in the mediation process, and is

practically part of the definition. See MCR 3.216(A)(2) (“[d]omestic relations mediation is a

nonbinding process in which a neutral third party facilitates communication between parties to

promote settlement”). That pressure to settle is not, by itself, coercion.

Plaintiff additionally raised concerns over the provision in the agreement whereby

defendant would pay $50,000 directly to plaintiff’s attorney. Plaintiff felt betrayed by her

attorney because he never told her that she owed him a fee beyond his retainer, and she believed

that the payment indicated that defendant had participated in coercing her. As the trial court

observed, there was nothing unusual about plaintiff’s counsel negotiating a provision requiring

defendant to be responsible for some or all of plaintiff’s attorney fees. See MCR 3.206(C)(2)(a)

and Kosch v Kosch, 233 Mich App 346, 354; 592 NW2d 434 (1999) (“[a] party in a domestic

relations matter who is unable to bear the expense of attorney fees may recover reasonable

attorney fees if the other party is able to pay”). There is no indication that defendant was

involved in negotiating the direct payment of attorney fees as part of the settlement.

Plaintiff claims that her ability to consent to the settlement agreement was impaired by

severe stress. However, the test for whether consent was illusory because of severe stress is that

of mental capacity to contract. Howard, 134 Mich App at 396. That is, “whether the person in

question possesses sufficient mind to understand, in a reasonable manner, the nature and effect

of the act in which he [or she] is engaged.” Id. (internal citation and quotation omitted). Plaintiff

would therefore have to show that she did not even comprehend the nature or terms of the

agreement. See id. Plaintiff simply has not shown anything of the sort; to the contrary, the

mediator questioned plaintiff about her understanding of the terms of the settlement agreement

and that plaintiff affirmatively indicated that she understood the terms, had no questions for her

appears that the mediator took proper care to ensure that the mediation was free from coercion.

See: http://courts.michigan.gov/scao/resources/standards/odr/dvprotocol.pdf.

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http://courts.michigan.gov/scao/resources/standards/odr/dvprotocol.pdf.


attorney or the mediator, and agreed to all of the terms as a full and final binding settlement of

the case. Plaintiff’s consent to the agreement cannot be invalidated on the basis of her stress.

Plaintiff next argues that the settlement agreement was unconscionable. This Court has at

least implied that a court may review the equities of property settlements in divorce actions

where parties “later attempt to renege on such agreements” if they appear unconscionable. See

Tinkle v Tinkle, 106 Mich App 423, 428; 308 NW2d 241 (1981). “The examination of a contract

for unconscionability involves inquiries for both procedural and substantive unconscionability.”

Hubscher & Son, Inc v Storey, 228 Mich App 478, 481; 578 NW2d 701 (1998). “Procedural

unconscionability exists where the weaker party had no realistic alternative to acceptance of the

[settlement agreement].” Clark v DaimlerChrysler Corp, 268 Mich App 138, 144; 706 NW2d

471 (2005). Substantive unconscionability exists where the challenged term is not substantively

reasonable. Id. The term must be more than merely disadvantageous; rather, “the inequity of the

term [must be] so extreme as to shock the conscience.” Id.

MCR 3.216(A)(2) specifically provides that “[d]omestic relations mediation is a

nonbinding process[.]” Plaintiff was not under any obligation to accept the settlement agreement,

and she always had the option of proceeding to trial. Plaintiff claimed, without any evidentiary

support, that the marital estate had an estimated value of $6 million, making the settlement

shocking after a 23-year marriage. The settlement agreement provided plaintiff with cash funds

of $1.2 million, required defendant to be responsible for $50,000 of plaintiff’s attorney fees,

provided that plaintiff was to receive the contents of the parties’ Florida home and either a

country club membership or an additional $20,000, and permitted plaintiff to retain all of her

bank and brokerage accounts, and her retirement account. Even presuming plaintiff received less

than half of the mathematical value of the marital estate, we are not persuaded that she received

such an inequitable distribution that the trial court can be said to have clearly erred in finding the

agreement not unconscionable.

Plaintiff also argues that the trial court erred by failing to invalidate the settlement

agreement on the basis that it was procured by fraud. “[A]n action for fraud must be predicated

upon a false statement relating to a past or existing act.” Cummins v Robinson Twp, 283 Mich

App 677, 696; 770 NW2d 421 (2009). Plaintiff averred that defendant represented at mediation

that the parties had a valid prenuptial agreement even though he knew that the prior prenuptial

agreement had been set aside, and she believed that defendant’s misrepresentation influenced the

mediator’s determination of a fair settlement. There is no indication that any party sought to

enforce any prenuptial agreement, and nothing in the record indicates that plaintiff’s consent to

the settlement was procured by any representation concerning the validity of a prenuptial

agreement. Again, plaintiff was not bound by any determination by the mediator. Moreover,

plaintiff did not aver that she consented to the settlement because she was misled into believing

that a valid prenuptial agreement existed. Accordingly, plaintiff was not entitled to have the

settlement agreement set aside on the basis of fraud.

In sum, the trial court did not err in rejecting plaintiff’s allegations of duress, coercion,

undue influence, unconscionable advantage, and fraud. The court properly determined that there

was no basis for invalidating plaintiff’s consent to the settlement.

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Plaintiff next argues that the trial court erred in finding that both her motion to disavow

the settlement agreement and her motion to dismiss were frivolous without first conducting an

evidentiary hearing. “MCR 2.114 does not provide a procedure to be followed before sanctions

can be imposed.” Hicks v Ottewell, 174 Mich App 750, 757; 436 NW2d 453 (1989). However, a

party must receive some type of reasonable notice and an opportunity to be heard before the

imposition of sanctions under MCR 2.114. Id.

Plaintiff was afforded notice that sanctions were being sought by defendant’s motion for

costs and attorney fees. Plaintiff answered defendant’s motion and extensively argued against

defendant’s motion at the motion hearing. The trial court concluded, on the basis of plaintiff’s

arguments and pleadings, that plaintiff’s motion to disavow the settlement agreement and motion

to dismiss the divorce case had frivolous motives. The trial court’s determination is supported by

the evidence. We are not left with a definite and firm conviction that a mistake was made. See

Contel Sys Corp v Gores, 183 Mich App 706, 711; 455 NW2d 398 (1990). As discussed, we are

not persuaded that, in this particular case, it was improper for the trial court to view plaintiff’s

claimed fear for her life with some dubiousness. The trial court was not required to conduct a

separate evidentiary hearing where it was satisfied that it was able to sufficiently decide the issue

on the evidence before it. Plaintiff was afforded reasonable notice and an opportunity to be heard

before sanctions were imposed. See Hicks, 174 Mich App at 757.

The trial court did not clearly err in finding that her motions to disavow the settlement

agreement and to dismiss the divorce case had frivolous motives. See Contel, 183 Mich App at

711. MCR 2.114(D) provides that the signature of an attorney or party constitutes a certification

by the signer that:

(1) he or she has read the document;

(2) to the best of his or her knowledge, information, and belief formed

after reasonable inquiry, the document is well grounded in fact and is warranted

by existing law or a good-faith argument for the extension, modification, or

reversal of existing law; and

(3) the document is not interposed for any improper purpose, such as to

harass or to cause unnecessary delay or needless increase in the cost of litigation.

“The filing of a signed document that is not well grounded in fact and law subjects the filer to

sanctions pursuant to MCR 2.114(E).” Guerrero v Smith, 280 Mich App 647, 678; 761 NW2d

723 (2008).

Here, the trial court found that plaintiff filed her motions because she had “buyer’s

remorse” and simply wanted “a do-over,” but she had no reasonable basis to believe that the

facts underlying her legal position were true. The trial court also found that plaintiff filed the

motions for the purpose of delay to prevent the judgment of divorce from being entered and that

the motions were disingenuous and directed at harassing defendant. The record supports these

findings. Plaintiff willingly engaged in mediation, acknowledged that she heard and understood

all of the terms of the settlement agreement, and stated that she agreed to all of those terms as a

full and final binding settlement of the case. When defendant submitted the written settlement

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agreement and consent judgment of divorce for signature, plaintiff refused to do so. Instead,

plaintiff moved to disavow the settlement agreement and supported her motion with an affidavit

averring that defendant had caused her to fear for her life, but then moved to dismiss the case the

very next day so she could reconcile with defendant. Plaintiff’s inconsistent actions and recorded

statements acknowledging her understanding of the settlement terms and her agreement with

those terms as a final and binding settlement belie her assertion that her motions were well

grounded in fact.

Plaintiff also argues that the trial court erred in finding that her motions were filed for

the improper purpose of causing delay. The settlement agreement indicated that the judgment

of divorce was to be entered as soon as possible, likely in mid to late February, possibly as late

as early March. Plaintiff argues that because she filed her motions in mid-February, she did not

cause any delay. However, the undisputed evidence showed that plaintiff refused to sign the

written settlement agreement and consent judgment of divorce when defendant presented those

documents. Although plaintiff contends that she would not sign the judgment because it

included some provisions that were not set out on the record at mediation, defense counsel

agreed to take out the offending provisions. Plaintiff then moved to disavow the settlement

agreement in its entirety and, the very next day, moved to dismiss the divorce case. The

inconsistency of plaintiff’s actions support the trial court’s finding that she was engaging in

tactical maneuvers to prevent the judgment of divorce from entering. The trial court did not

clearly err in finding that plaintiff’s motions were filed for a purpose of causing unnecessary

delay.

Lastly, plaintiff argues that the trial court abused its discretion in awarding sanctions in the

amount of $17,695. “We review the amount of an award of sanctions for an abuse of discretion.”

In re Costs & Attorney Fees, 250 Mich App 89, 104; 645 NW2d 697 (2002). An award of

sanctions under MCR 2.114 must be “reasonable.” Id.; MRPC 1.5(a). Here, the trial court issued

an opinion and order in which it made detailed findings of fact and considered the factors set forth

in MRPC 1.5(a). Plaintiff does not dispute the trial court’s findings of fact. Rather, she argues that

the trial court improperly shifted the burden of proof, improperly decided evidentiary issues by

taking judicial notice of the State Bar of Michigan Economics of Law Practice Survey, and failed

to recognize that it had discretion to order sanctions in an amount less than the full amount of

actual attorney fees. The record does not support plaintiff’s claims.

Plaintiff correctly observes that “the burden of proving the reasonableness of the

requested fees rests with the party requesting them.” Smith v Khouri, 481 Mich 519, 528-529;

751 NW2d 472 (2008). Defendant supported his motion for costs and attorney fees with an

itemized list of costs and attorney fees resulting from plaintiff’s actions, as well as

documentation supporting his claims of reimbursement for out-of-pocket expenses for airfare

and hotel, country club dues, and health insurance. At the hearing on defendant’s motion, the

trial court accommodated plaintiff by conducting an evidentiary hearing in which plaintiff’s

counsel was permitted to question defendant’s two attorneys about their billing statements.

There is no indication that the trial court placed the burden on plaintiff to show that defendant’s

requested fees were not reasonable, and plaintiff’s assertion that defendant failed to meet his

burden of proving the reasonableness of the requested fees is without merit.

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Further, it was not improper for the trial court to consider the State Bar of Michigan

Economics of Law Practice Survey when evaluating the reasonableness of defendant’s attorney

fees. “It is . . . acceptable for the court to take judicial notice of facts that can be accurately

determined by sources of unquestionable reliability, for example, statistics.” Protective Nat’l Ins

Co of Omaha v City of Woodhaven, 438 Mich 154, 171; 476 NW2d 374 (1991) (CAVANAGH, C.J.,

dissenting), citing Fortner v Koch, 272 Mich 273[, 279]; 261 NW 762 (1935). Indeed, in Smith,

481 Mich at 531-532, our Supreme Court stated that “[t]he fees customarily charged in the

locality for similar legal services can be established by . . . empirical data found in surveys” and

instructed that “trial courts of this state should avail themselves of the most relevant data

available” such as that “contained in surveys such as the Economics of the Law Practice Surveys

that are published by the State Bar of Michigan.”

Finally as to this issue, the record does not support plaintiff’s argument that the trial

court failed to recognize that it had discretion to order sanctions in an amount less than the

amount of actual attorney fees requested. Plaintiff is correct that the actual fees charged are not

necessarily reasonable fees. Zdrojewski v Murphy, 254 Mich App 50, 72; 657 NW2d 721

(2002). The record discloses that the trial court understood that it was only permitted to award

reasonable attorney fees after considering the factors in MRPC 1.5(a). Indeed, the court

expressly refused to award attorney fees for various items, including time spent preparing and

revising the judgment of divorce and for time spent conversing with defendant’s son. Thus, it

is clear that the trial court was aware of its discretion to independently determine the

reasonableness of the requested fees.

In sum, we find no clear err in the trial court determination that plaintiff was liable for

sanctions because her motions were interposed for frivolous reasons, and conclude that the trial

court did not abuse its discretion in awarding costs and attorney fees in the amount of $17,965.

Affirmed.

/s/ Amy Ronayne Krause

/s/ Kirsten Frank Kelly /s/

David H. Sawyer

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Zumeta & Johannessen - Mediator Standards of Conduct

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