MICHIGAN ADR IN THE NEW MILLENNIUM

By Steven L. Schwartz

WELCOME TO THE FUTURE—MICHIGAN’S NEW ADR COURT RULE

On August 1, 2000, the ADR wave of the future merged with the coastline of the present law practice. Following years of study and more than a year of blue-ribbon Task Force debate, the Michigan Supreme Court gave effect to MCR 2.410—Michigan’s new ADR Court Rule. On this day, Michigan established ADR as a legitimate part of its judicial system for resolving disputes. On this day, Michigan joined the majority of legislatures and judiciaries of the States and the Federal government having already made ADR part of the legal establishment. Little fanfare greeted this important moment in the lives of lawyers and judges. Even less attention was given to it by the general public. Yet, the effects of this new Court Rule are already beginning to be felt. The full impact still awaits. For now, since virtually all filed court cases (and likely those that are “wanna-be’s”) will be subject to the Rule’s application, educating the profession and the public about the Rule, ADR processes and selection, is “job one”.

SCOPE OF THE NEW RULE—WHAT IS COVERED AND WHAT ISN’T

MCR 2.410 adopts ADR as a formal part of the Michigan court system. All civil cases are subject to ADR unless otherwise provided by statute or court rules. ADR is any process designed to resolve a legal dispute in the place of court adjudication. ADR may include other procedures provided by local court rule or ordered on stipulation of the parties.

THE “NEW” JUDICIAL POWER—ORDERING ADR

MCR 2.401 establishes the power of the court to direct the parties to appear at a pre-trial conference where referral to ADR should be considered and for the initiation and completion of an ADR process. Under 2.410, a court is empowered to order a case into ADR at any time, after consultation with the parties. The court may require that parties intending to try a case be present at an ADR process. The court may, furthermore, require that persons with authority to settle, be represent at the ADR proceeding or be immediately available in person or by telephone. Failure to attend a scheduled ADR proceeding as directed by the court constitutes default or grounds for dismissal. The court may excuse non-attendance if entry of the default or dismissal would cause manifest injustice or the failure to attend was not due to culpable negligence. A part may move to set aside an order to ADR within 14 days after its entry.

COURT ADOPTION OF AN “ADR PLAN”

Courts submitting cases to ADR must adopt an ADR plan by local administrative order. The plan must designate an ADR clerk, specify how a test of persons serving as mediators (formerly “facilitators”) will be developed and maintained (if the court orders parties to mediation – formerly “facilitation” under MCR 2.411), identify how information about the court’s ADR programs will be distributed to litigants and the public, and identify how access to ADR processes will be provided for indigent persons.

“MEDIATION” AND “CASE EVALUATION”—THE NEW VOCABULARY AND THE NEW PROCESS

MCR 2.403, known throughout the United States as “Michigan mediation,” is renamed “case evaluation” and all references to MCR 2.403 are likewise amended to reflect the new term. Gone is the word “facilitation” from the Michigan ADR lexicon – a term not to be found in the court rules to begin with. MCR 2.411 establishes true “mediation” which will be recognized as the process formerly referred to as “facilitation.” Mediation is defined to be a process in which a neutral third party facilitates communication between or among parties, assists in identifying issues and helps explore solutions to promote a mutually acceptable settlement. A mediator has no authoritative decision-making power and cannot order or require the parties to settle or proceed in any particular way. The court’s order referring the matter to mediation will specify the time within which the mediation is to be completed. The mediator will immediately contact the parties to schedule mediation in accordance with the order. The mediator may take into consideration the need for limited discovery, the number of parties and issues, and the need for multiple sessions in scheduling the mediation. The mediator may also require that the parties submit documents or summaries providing information about the case. During mediation, the mediator will explain the mediation process and discuss with the parties and counsel (if any) the facts and issues involved. The mediation will continue until (a) a settlement is reached; (b) the mediator determines that a settlement is not likely to be reached at that time; (c) the end of the first mediation session; or (d) until a time agreed by the parties. Within 7 days after the completion of mediation, the mediator will advise the court, stating only the date of completion of the process, who participated, whether settlement was reached, and whether further proceedings are contemplated. If the matter is settled through mediation, the attorneys will prepare and submit appropriate documents to conclude the case within 21 days of the settlement. Statements made during the mediation, including statements made in written documents, 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. Only information not considered to be confidential is the mediator’s report to the court, information necessary for the court to administer and evaluate the program, and information necessary for the court to resolve disputes regarding the mediator’s fee may not be confidential. Mediator Selection and Compensation Parties are encouraged to agree to the selection of their own mediator. The person(s) selected by the parties does not have to meet the qualifications for mediators identified in the court rule. If the parties do not agree to the selection of their mediator in the time provided by the court, the court may appoint a mediator. If the parties do not select their own mediator, the court’s ADR clerk will assign a mediator from an approved list of mediators, based on a rotation system. A mediator may be disqualified for the same reasons a judge may be disqualified (see MCR 2.003 for a list of grounds for disqualification). A mediator is entitled to reasonable compensation based on the mediator’s experience and usual charges for services. Costs of mediation are divided between the parties on a pro-rata basis unless otherwise agreed by the parties or ordered by the court. If acceptable to the mediator, the court may order a different arrangement for the payment of the mediator’s fee. If a party objects to the total fee of the mediator, the matter may be scheduled before the trial judge for determination of the reasonableness of the fee. Court Roster of Mediators To be qualified for the court’s roster of mediators, both attorneys and non-attorneys, alike, must complete an application which includes a certification that (a) the applicant meets the requirements for service under the court’s selection plan, (b) the applicant will not discriminate against parties or attorneys on the basis of race, ethnic origin, gender, or other protected personal characteristic; and (c) the applicant will comply with the court’s ADR plan, orders of the court regarding cases submitted to mediation, and the standards of conduct for mediators adopted by the State Court Administrator. The applicant will also indicate the applicant’s hourly fee for providing mediation service and provide an optional section for identifying the applicant’s gender and racial/ethnic background. The court’s ADR plan provides for a person or committee to review the mediator applications at least annually. The approved list of mediators will be available in the office of the ADR clerk. For small claims mediation, district courts may develop individual plans to establish qualifications for persons serving as mediators. Applicants who are not placed on the list of approved mediators will be notified of that decision and will have 21 days to see reconsideration of the ADR clerk’s decision by the Chief Judge. The court does not need to provide a hearing. The ADR clerk may remove from the list mediators who have demonstrated incompetence, bias, made themselves consistently unavailable to serve as a mediator, or for other just cause. A mediator removed from the list by the ADR clerk may seek reconsideration by the Chief Judge within 21 days of being notified of the decision to remove the mediator. The court does not need to provide a hearing. Mediator Qualifications Civil mediator qualifications require that a mediator must: (a) complete a training program approved by the State Court Administrator; (b) have either or both a juris doctor degree or graduate degree in conflict resolution; or have 40 hours of mediation experience over two years, including mediation, co-mediation, observation, and role-playing in the context of mediation. The mediator must also have observed two general civil mediation proceedings conducted by an approved mediator, and conduct one mediation to conclusion under the supervision and observation of an approved mediator. The SCAO has established special “grand-parenting” requirements for applicants who already have been trained or receive their training (a) prior to February 10, 2001 or (b) outside the State of Michigan. These requirements include: (1) completion of Michigan Community Dispute Resolution Training, mediation or co-mediation of at least 40 hours or 18 cases in the two years prior application and submission of an application before December 31, 2002; or (2) completion of a comprehensive mediator training program of a minimum of 24 hours by February 10, 2001, continuing mediator training of at least 4 hours per year for the past two years, mediation or co-mediation of at least 40 hours or 18 cases in the two years prior to application, submission of application by December 31, 2002. Lawyers currently serving on an existing “facilitation” roster and having received 16 hours of training as of February 10, 2001, must complete an additional 8 hours of training before July 1, 2001 to be qualified. Domestic Relations mediation is now the rule for all such cases unless otherwise provided by statute or court rule. MCR 3.216 sets out mediation procedures and rules as a separate process from general civil case mediation. Standards of Conduct for mediators have been adopted by the State Court Administrator. These Standards are designed to promote honesty, integrity, and impartiality in providing court-connected dispute resolution services. The Standards are also included in all training and educational requirements for court-connected programs and will be available to the public.

GLOSSARY OF ADR PROCESSES

Mediation: A Third-Party Neutral Facilitates Settlement Of all ADR processes, mediation allows parties and their attorneys to exercise the most control over both procedure and outcome. In mediation, a third-party, neutral individual assists the parties in reaching a mutually acceptable agreement - by aiding them in discussing the relevant facts, exploring their interests, examining the strengths and weaknesses of their positions and generating possible solutions. Mediation allows flexibility in determining the procedures to be used in resolving the dispute, and focuses more on finding solutions than on determining fault. Most significantly, the mediator does not impose a decision upon the parties. A dispute will be resolved through mediation only on terms and conditions acceptable to the parties themselves.

Mini-Trial: Panel Decision-making by the Parties Assisted by Third-Party Neutral A mini-trial is a more formal process than mediation, but also permits the parties to determine the outcome. In a mini-trial, counsel for the parties make an abbreviated “best case” presentation before a panel that usually consists of a high level decision-maker with full settlement authority for each side and a neutral third-party advisor. At the conclusion of this presentation (often limited to a day or two) the decision-makers meet to attempt to settle the dispute. If they are unable to do so, the advisor may serve as a mediator or render a non-binding opinion as to the probable litigated outcome regarding specific legal, factual and evidentiary issues as well as the likely overall litigation result. Armed with the advisory opinion, the disputants enter into further confidential settlement negotiations in an attempt to reach a mutually acceptable agreement. A mini-trial is particularly useful when the parties wish to control the possible settlement outcome of a dispute but (1) prefer a more formal, legalistic procedure for reaching that outcome, (2) wish to more formally educate the decision-makers regarding the strengths and weaknesses of their cases and (3) may need a third-party opinion regarding the merits of a case.

Case Evaluation: An Evaluation by Experienced Attorneys In the case evaluation conference, each party and his or her counsel presents their position before a panel of neutral third parties, usually attorneys. Limited witness testimony and exhibits may be introduced. The panel then issues a non-binding advisory opinion which may deal with liability, damages, or both. The parties can use the panel’s opinion to help them as they discuss settlement. (See MCR 2.403).

Summary Jury Trial: Viewing the Case Through the Eyes of a Mock Jury The summary jury trial is like a mini-trial but involves a mock jury. The process occurs in a courtroom with a presiding judge and a mock jury (usually consisting of six members) impaneled by the court from the list of “real jurors”. Counsel for each party makes his or her best expedited presentation of evidence that would be admissible at trial. The jury gives an advisory verdict to the parties, which they can use as a basis upon which to build a settlement. After the summary jury trial, the judge meets with the parties and counsel to encourage settlement.

Neutral Fact Finding: A Third-Party Neutral Investigates/Determines Key Facts Neutral fact-finding represents an alternative process for resolving complex matters such as those involving scientific, technical, sociological, business, or economic issues. In this process, either the parties or the court selects a neutral expert who investigates the question(s) at issue and submits a non-binding report or testifies in court. This process may be either voluntary or involuntary. If the process is voluntary, the parties can decide whether or not they will accept the expert’s recommendation as binding. An important advantage of neutral fact-finding is the ability to select a neutral decision-maker with expertise in the technical areas involved in the dispute. Using a neutral expert as fact-finder in these types of cases may promote a fast and fair settlement without the obfuscation of issues or litigation posturing that can otherwise result.

Early Neutral Evaluation: A Third-Party Neutral Focuses the Case and Becomes the Case Manager Early neutral evaluation is being used quite successfully in courts around the country. In this forum, the attorneys present the core of the dispute to a third-party neutral or panel in the presences of the parties. This occurs after the case is filed but before discovery is conducted. The neutral then gives a candid assessment of the strengths and weaknesses of the case. Settlement may result at this point. If settlement does not result, the neutral helps narrow the issues and suggests guidelines for managing discovery.

Med-Arb: An Attempt to Mediate Which, If Necessary, Will Be Followed by Binding Arbitration Med-arb is a hybrid of mediation and arbitration in which the parties initially mediate their disputes. If the parties reach impasse in the mediation phase, they arbitrate the deadlocked issues. Among other issues, the parties must decide whether they wish to use the same individual as mediator and arbitrator or use two individuals and whether they wish to conduct both processes on the same day or different days.

Arbitration: Formal Decision-making By Third-Party Neutral(s) Arbitration is the most commonly known and used alternative to civil trials. Arbitration may be voluntary or mandatory, binding or non-binding. If it is binding, this process affords the parties the least control over either the decision-making process or the outcome. In an arbitration, each party has an opportunity to present their evidence and argue their case at a hearing which is structured but is less formal than court adjudication. The process is designed to be less expensive and more expeditious than litigation, with decision-making provided by an arbitrator or panel of arbitrators with expertise in the substantive area of the dispute. Variations of traditional arbitration include “baseball arbitration” and “high-low arbitration.” In baseball arbitration, each side proposes an award and the arbitrator must choose one of those proposed. In high-low arbitration, the parties agree to restrict the range of an arbitrator’s award so that the high and low boundaries of an award are fixed. The award will never exceed the highest amount in the range nor drop below the lowest amount. This affords the parties some opportunity to “hedge their bets” and exercise some control over the final outcome.

Private Judging/Consensual Special Magistrate: Private judging (also known as using a consensual special magistrate), in which the parties retain a retired judge to conduct a trial of their claims and render a binding decision, is similar to arbitration in concept and purpose. One important difference is that if the private judging is court-annexed and the presiding judge adopts the private judge’s decision, the parties preserve their right to appeal. This process is limited by the number and availability of qualified retired judges.

Other ADR Processes: Hybrid and Flexible Tools for Dispute Resolution One of the most exciting aspects of ADR is the flexibility provided attorneys and their clients in fashioning the most appropriate process to solve a particular problem and resolve the dispute. Although the best-known ADR processes are described above, there is no rule that limits parties or attorneys to these definitions. An experienced ADR provider can extract and combine key elements of various ADR processes to create the best opportunity and process for resolving a particular dispute.

ADR PROCESSES AT A GLANCE

The following chart provides a quick summary of the nine most common ADR processes.

PROCESS THIRD PARTY NEUTRAL PRIMARY GOALS Mediation Mediator Facilitated negotiation. Facilitation of settlement negotiations - - discussion of issues and interests, focus on clarified communication, risk analysis. Mini-Trial Neutral member of three- person panel Education of decision-makers. Education of decision-makers regarding positions to facilitate later settlement negotiations; possible advisory opinion from ADR neutral. Case Evaluation Three-member panel of neutrals, usually attorneys Evaluation by legal experts. Non-binding advisory opinion regarding liability, damages, or both. Summary Jury Trial Six-member advisory jury and judge Evaluation by laypersons. Non-binding advisory verdict regarding liability, damages, or both. Neutral Fact Finding Neutral expert investigator Evaluation by technical expert. Non-binding advisory report after informal investigation. Early Neutral Evaluation Neutral evaluator Evaluation and aggressive case management. Assessment of strengths and weaknesses of positions; discovery management to refine issues; if not settled case proceeds. Med-Arb Mediator; arbitrator (may be same person or different persons) Facilitated negotiation and assurance of final resolution. Facilitation of settlement negotiations; if not fully successful, binding award. Arbitration Arbitrator Final resolution. Binding award, if stipulated. Consensual Special Magistrate Private judge Final resolution with right to appeal. Binding decision; may be appealed.

ANATOMY OF THE NINE MOST COMMON ADR PROCESSES.

The following charts describe the ADR process, its intended result, the role and power of the neutral, when the ADR process is most and least useful.

1. MEDIATION

Description Facilitation of settlement between parties and attorneys. Of all ADR processes, mediation allows parties and their attorneys to exercise the most control over both procedure and outcome. In mediation, a third-party neutral assists the parties in reaching a mutually acceptable agreement. Mediation allows flexibility in determining the procedures to be used in resolving the dispute, and focuses more on finding solutions than on determining fault. Most significantly, the mediator does not impose a decision upon the parties. A dispute will be resolved through mediation only on terms and conditions acceptable to the parties themselves.

RESULT Negotiated settlement agreement

ROLE OF NEUTRAL Facilitator of settlement - manages communication process, asks questions regarding important facts and underlying interests, conducts reality testing regarding strengths and weaknesses of positions, helps parties generate solutions, acts as a “shuttle diplomat”.

POWER OF NEUTRAL The power given by the parties - - no coercive power.

WHEN USEFUL  Confidentiality important  Ongoing relationship between the parties worth preserving  Parties want minimized costs  Parties need to express emotions  Communication difficulties impede settlement  Out-of-control clients need realty testing from outside  Desire for creative solutions (not obtainable in court)  Risk-free forum for risk –adverse parties  Uncertain outcome in court

WHEN NOT USEFUL  Legal principle at stake/need for precedent  Unwillingness to compromise  Need for vindication  Lack of good faith or unmeritorious claim

2. MINI-TRIAL

Description Abbreviated trial before parties’ decision-makers and neutral. A mini-trial is a more formal process than mediation, but also permits the parties to determine the outcome. In a mini-trial, counsel for the parties make an abbreviated ‘best case” presentation before a panel that usually consists of a high-level decision maker with full settlement authority for each side and a neutral third-party advisor. At the conclusion of this presentation (often limited to a day or two) the decision-makers meet to attempt to settle the disputes. If they are unable to do so, the advisor may serve as a mediator or render a non-binding opinion as to the probable litigated outcome regarding specific legal, factual and evidentiary issues as well as the likely overall litigation result. Armed with the advisory opinion, the disputants enter into further confidential settlement negotiations in an attempt to reach a mutually acceptable agreement.

RESULT Negotiated settlement agreement

ROLE OF NEUTRAL Preside over hearing/advisor/mediator

POWER OF NEUTRAL  Make evidentiary decisions  Render opinion (optional)  Facilitate settlement (optional)

WHEN USEFUL  One or both parties need a realistic and graphic picture of:  Strength of opposition’s case  Weaknesses of own case  Ongoing business relationship important to decision makers  If educated, key decision-makers can break the log-jam in settlement  Third party facilitation or opinion could break log-jam on facts or law

WHEN NOT USEFUL  Dispute not worth the expense or effort of a mini-trial  Parties do have a realistic picture of each other’s case  One side is not motivated to present its “best case”

3. MODERATED SETTLEMENT CONFERENCE

Description Abbreviated trial before a panel of experts. In the moderated settlement conference, each party and his or her counsel presents their position before a panel of neutral third parties, usually attorneys. Limited witness testimony and exhibits may be introduced. The expert panel then issues a non-binding advisory opinion which may deal with liability, damages, or both. The parties can use the panel’s opinion to help them as they discuss settlement.

RESULT Advisory opinion of experts on liability, damages or both Expert’s evaluation of parties’ cases

ROLE OF NEUTRAL Advisor/evaluator

POWER OF NEUTRAL Give non-binding opinion to influence parties’ settlement negotiations

WHEN USEFUL  Need for neutral opinion of “experts” due to different views of facts and law  Need for neutral opinion of “experts” due to different views of strengths and weaknesses of cases  Disposition of critical issue might encourage settlement  Offers “day in court” and some sense of vindication

WHEN NOT USEFUL  Want the case to be reported  One or more of the parties will not accept or be influenced by expert opinion  Need for full vindication of rights

4. SUMMARY JURY TRIAL

Description Abbreviated trial to a mock jury. The summary jury trial is like a mini-trial but involves a mock jury. The process occurs in a courtroom with a presiding judge and a mock jury (usually consisting of six members) impaneled by the court from the list of “real jurors”. Counsel for each party makes his or her best expedited presentation of evidence that would be admissible at trial. The jury gives an advisory verdict to the parties, which the parties can use as a basis upon which to build a settlement. The attorneys often have an opportunity to poll jurors regarding the reasons for their verdict. After the summary jury trial, the judge meets with the parties and counsel to encourage settlement.

RESULT Advisory verdict of laypersons on liability, damages or both

ROLE OF NEUTRAL Summary jury trial judge- - Same as a judge in a jury trial, except limited by the parties Summary jury trial - - Same as a jury in a trial, except the verdict is advisory

POWER OF NEUTRAL Summary jury trial judge - - Makes evidentiary rulings and may facilitate subsequent settlement negotiations Summary jury trial jury - - Gives opinion with reasoning

WHEN USEFUL  Need for neutral opinion of “typical jurors” due to different views of facts and law  Need for neutral opinion of “typical jurors” due to different variations of case  Need for ice-breaker - - Settlement more likely if summary jury gives likely verdict  Opportunity for “day in court” when/if real trial would be very lengthy and costly

WHEN NOT USEFUL  What is at stake does not merit the expense or effort of a jury trial, even if abbreviated  Parties will not accept or be influenced by the non-binding verdict  One side only seeks a “practice” trial

5. NEUTRAL FACT FINDING

Description Investigation by mutually-selected expert, followed by advisory opinion. Neutral fact-finding represents an alternative process for resolving complex matters such as those involving scientific, technical, sociological, business, or economic issues. In this process, either the parties or the court selects a neutral expert who investigates the question(s) at issue and submits a non-binding report or testifies in court. This process may be either voluntary or involuntary. If the process is voluntary, the parties can decide whether or not they will accept the expert’s recommendation as binding. An important advantage of neutral fact finding is the ability to mutually select a neutral decision-maker with expertise in the technical areas involved in the dispute. Using a neutral expert as fact-finder in these types of cases may promote a fast and fair settlement without the obfuscation of issues or litigation posturing that can result when opposing advocate experts are engaged. RESULT Advisory opinion or recommendation regarding technical, scientific, business or economic issues which is provided to parties and court

ROLE OF NEUTRAL Investigates and analyzes facts

POWER OF NEUTRAL Give opinion regarding key factual issues to influence parties’ settlement postures

WHEN USEFUL  Case turns on scientific, technical sociological, business, economic or medical facts  Attorneys agree that one neutral expert makes more sense than two advocate experts

WHEN NOT USEFUL  Damage evaluation involves intangibles (e.g., emotional stress, loss of reputation) more than technical issues  The issues, though technical, do not lend themselves to true neutrality

6. EARLY NEUTRAL EVALUATION

Description Mini-presentation to neutral early in life of case. In this forum, the attorneys present the core of the dispute to a third-party neutral or panel in the presence of the parties. This occurs after the case is filed but before significant discovery is conducted. The neutral then gives a candid assessment of the strengths and weaknesses of the case. Settlement may result at this point. If settlement does not result, the neutral helps narrow the dispute and suggests guidelines for managing further discovery.

RESULT First phase - - Candid assessment/evaluation of strengths and weaknesses of case Second phase - - Guidelines for discovery

ROLE OF NEUTRAL First phase - - Advisor Second phase - - Case manager

POWER OF NEUTRAL First phase - - Give opinion to influence parties’ settlement postures and narrow dispute Second phase - - Manage discovery

WHEN USEFUL  One or both attorneys have not focused on the key issues in the case  One or both attorneys are having difficulty with their clients  One or both parties do not have a realistic picture of strength of opposition’s case or weaknesses of own case  Parties want to minimize costs  Parties desire a speedy result  Technical and complex issues require untangling

WHEN NOT USEFUL  The issues are clear  An advisory opinion is unlikely to create doubt in anyone’s mind  Without significant discovery, advisor opinion is not helpful

7. MED-ARB

Description Hybrid of mediation and arbitration. Med-arb is a hybrid of mediation and arbitration in which the parties initially mediate their disputes. If the parties reach impasse in the mediation phase, they arbitrate the deadlocked issues. Among other procedural decisions to be made, the parties must decide whether they wish to use the same individual as mediator and arbitrator or use two individuals and whether they wish to conduct both processes on the same day or different days.

RESULT Mediation phase – negotiated settlement agreement on all or some of the issues in dispute Arbitration phase (commenced if impasse is reached) – decision

ROLE OF NEUTRAL Mediation phase - - Facilitator of settlement Arbitration phase - - (commenced if impasse is reached) - - Adjudicator

POWER OF NEUTRAL Mediation phase - - Some coercive power if mediator also will serve as arbitrator Arbitration phase - - That of a judge with narrow grounds for appeal

WHEN USEFUL  Need for closure  Preference for creative, non-rule-bound process  Creativity and realism can be encouraged when arbitration is “around the corner”

WHEN NOT USEFUL  Important legal principals at stake  Concern that either process will be “contaminated” by role switch (solution: use different person for each process)

8. ARBITRATION

Description Submission to decision by third party neutral(s). This form of ADR is essentially a trial by a privately selected neutral (or neutral panel) involving the calling of witnesses, introduction of evidence, opening and closing arguments. While discovery is also permitted, it is typically less than that in civil litigation. Arbitration can be voluntary or mandatory, non-binding or binding. The process is designed to be less expensive, faster and less formal than court adjudication.

RESULT Decision rendered

ROLE OF NEUTRAL That of a judge with narrow grounds for appeal

WHEN USEFUL  Need for a decision  Opportunity for “day in court”  Parties desire for speedier result than court trial  Parties desire for less expensive procedure  Parties desire for confidentiality

WHEN NOT USEFUL  On-going relationship between parties worth preserving  Parties want minimized cots and involvement  Desire for creative solutions  Risk-free forum  Creative situations desired

9. CONSENSUAL SPECIAL MAGISTRATE

Description Private judging. Case proceeds as a formal trial before a former judge who renders a final decision. Where part of court-annexed process and the presiding judge adopts the private judge’s opinion, the right to appeal exists.

RESULT Decision rendered

ROLE OF NEUTRAL Decides the case as a judge would

WHEN USEFUL  When final decision desired  When final decision desired but faster than court  Need for vindication

WHEN NOT USEFUL  Creative solutions desired  On-going relationship need to be preserved  Parties want minimal costs  Limited by availability of retired judges

PROFESSIONAL RESPONSIBILITY, THE PUBLIC TRUST AND ADR

Living up to a lawyer’s professional responsibility certainly means practicing in accordance with the letter and spirit of the formal Rules of Professional Conduct. However, to remain viable as a profession and worthy of the public trust and special status accorded to us, we must provide leadership in the law. That leadership includes not only advocating zealously for our clients but creating an environment and offering methodologies that constructively aid in the management of conflict and the resolution of disputes. In a world of increasing interdependence among individuals and nations, new means must be investigated and employed to facilitate that interdependence in a peaceful manner. From elementary school programs that teach children how to handle playground problems, to nuclear non-proliferation treaties, the message is clear: Disputes should be channeled into frameworks that make it practical, honorable and acceptable to settle by consensual and non-adversarial means. From the standpoint of preserving and promoting democracy and human rights, lawyers must take the lead in educating our citizens to the principle that the responsibility for resolving conflict begins with individual and not enter the courts. To achieve fulfillment of our democratic ideals we must strive to create more capable individuals. As lawyers, our role is equally clear: Our training and knowledge of the law ideally suit us to construct the necessary frameworks, counsel our clients in their use and adopt ADR as the preferred method for dispute resolution. At one time, to have advocated ADR was an act of heresy in the legal professional and sure evidence of wimpiness to our clients and colleagues. Now, advocating ADR is nothing less than necessary to restore lawyer job satisfaction, meet the demands of our clients, and is critical to re-establishing the public’s faith and trust in us as the legitimate gatekeepers to the halls of justice.

BACK TO THE FUTURE

Clients, lawyers, courts and the public increasingly pressure our justice system to resolve disputes in a fair, economical and timely manner. These are reasonable demands especially in a society that values democratic ideals and the inalienable rights of its citizens. However, litigation as the sole source for conflict resolution in such a society, not surprisingly, falls short of fulfilling these otherwise reasonable demands. Where the court system becomes the first choice for conflict resolution rather than the last resort, two things happen: First, the court as an institution simply cannot meet the workload and satisfy everyone’s expectations for a satisfactory process. Second, democracy is weakened because individual citizens look to others to make their decisions rather than taking responsibility for their own conduct. The ultimate result is that our inalienable rights go unfulfilled and our democratic institutions suffer. Seen in this light, the growth of ADR, generally, and the adoption of MCR 2.411, particularly, represents a more significant development than simply an alternative to the courtroom for the resolution of disputes. Rather, these developments are part of a larger change going on in America and, indeed, the world. This change involves acknowledging that democracy and individual freedom require constant vigilance to be maintained. This change further involves recognizing that, in the final analysis, no society functions well unless its individual citizens act responsibly and the social environment permits and promotes self-determination and full development of human potential. Correspondingly, the methodology for conflict resolution must change to meet evolving individual and societal needs. Since conflict among individuals in a democratic society is inevitable, the ability of individuals to satisfactorily resolve conflict becomes the responsibility and a necessary requirement for good citizenship. Recognition of this principle can now be found all across American society and its private and public institutions. On one end of the spectrum is peer mediation and conflict education programs that are successfully being implemented in our schools from elementary through high school. On the other end of the spectrum, disputes among nations and ethnic groups are being addressed through “flack jacket mediation” as a means for shortening or avoiding violence and bloodshed and creating the conditions for eventual healing of centuries-old antagonisms. All across the middle of this spectrum are the vast array of conflict education, “team-building” programs and internal personnel dispute resolution processes which are being conducted by American business as a way to improve workplace cooperation, satisfaction and productivity. Indeed, entire industries are moving to incorporate ADR processes as the preferred method for dispute resolution, construction, securities, labor, franchising and consumer warranty complaints are just a few examples. The public sector is also moving to ADR as witnessed by the Federal Government, itself, directing that all of its divisions are to adopt ADR processes for addressing conflicts among its various agencies as well as with citizens whose lives are impacted by government decisions. Evident from this brief summary of developments, is that conflict resolution through ADR resolution is not limited to the courts but is a more universal phenomenon. This more universal aspect is significant in that it holds within it the distinct possibility that people and their societies can evolve to greater levels of cooperation, peace and fulfillment of human potential. Imagine, for example, an entire generation of school children who have been taught personal and interpersonal skills for resolving conflicts on their own. Would not such a generation of children likely grow into adulthood, raise families and conduct business in much more constructive and productive ways? Would not the ideals of life, liberty and the pursuit of happiness be much more likely to be realized by greater numbers of our citizens? And would not such more fully developed citizens actually, concretely contribute to a more peaceful and productive world? So, while we Michigan lawyers go about adjusting to and implementing our new ADR Court Rule, we ought to keep the overall perspective in mind: The “ADR phenomenon” quite possibly exemplifies a broader social phenomenon at work – one that represents a positive development in the progress of our democratic society.