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What recourse do I have for an unsuccessful mediation?

Thursday, 22 July 2010 00:00

Question:

We held two mediation sessions before the first court hearing. Agreements were made, rescinded, meetings set up, canceled, etc. All the while, this is costing me money. My wife has decided to try mediation again, but now I don't want to go because I feel the mediator should be held accountable. What recourse do I have for an unsuccessful mediation?

Answer:

You asked what recourse you have for an unsuccessful mediation in Michigan.

Mediation is often used in divorce cases in Michigan. The mediator’s job is to help parties communicate, clarify the issues involved in the dispute, and find mutually beneficial solutions for the matters in dispute. The mediator should not take sides, and should allow each party to have equal say and bargaining power in the resolution of the issues.

Mediation is private and nonbinding. The judge does not know what happened during the mediation. If the parties reach an agreement on one or more of the issues, they can then let the judge know that an agreement has been reached, and the judge will make a record of that agreement. If issues are unresolved after mediation, the judge does not find out why, or who caused them to be unresolved, and the decision on those issues is left to the judge. You do not have to agree to anything that happens at mediation.

Either party can stop mediation at any time. It is completely voluntary. If a judge orders that you continue with mediation, you have a right to object to that order within fourteen days of it being signed. The court is then required to hold a hearing to determine if mediation is right for your case. If that time period has not already elapsed, you should file an objection to mediation.

It sounds like you were unhappy with the mediation process in your divorce. When this occurs, you should express your discontent at the first opportunity possible.

Because the mediator is mutually chosen by the parties, both parties are responsible for the mediator’s fees. Mediators normally charge an hourly rate for the time that is spent working to resolve the case. If the mediator did the work, it is likely you and your ex-spouse will be responsible for his bill. Because mediation is voluntary, you could have asked that it be stopped at any time to avoid accumulation of fees. If you feel that some of those fees were charged because of the misconduct of your ex-spouse, you can ask that the judge allocate those fees to her, and make you not responsible for them.

If you feel that the mediator was biased toward your spouse, you do not have to agree to any of the settlements made in mediation. Mediation is nonbinding, and can only be entered into with the consent of both parties.

Becoming a mediator in Michigan is quite easy. Mediators are only required to have minimal training and experience. The Michigan Supreme Court regulates the training of mediators. If you are unhappy with how your mediator performed, you should contact the Alternative Dispute Resolution (ADR) clerk at the court your case is in. Each court is responsible for keeping a list of approved mediators. They may have procedures for responding to complaints about their approved mediators.

Although I practice law in Michigan, I cannot give you legal advice without thoroughly reviewing your case. Do not rely on this information as establishing an attorney-client relationship. Contact an attorney immediately for assistance. Cordell & Cordell does represent clients in Michigan. Thank you for submitting a question to Cordell & Cordell.

 

Jill A. Duffy is an Associate Attorney in the Troy, Mich., office of Cordell & Cordell. She is licensed to practice in the state of Michigan. Ms. Duffy received her BA in Psychology and Spanish and graduated Magna Cum Laude from Oakland University. She received her Juris Doctor from Michigan State University College of Law and graduated Magna Cum Laude.

 

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