October 10, 2017, Introduced by Reps. Kesto, Chang, Liberati, Lucido, Lilly and Yaroch and referred to the Committee on Judiciary.
A bill to amend 1961 PA 236, entitled
"Revised judicature act of 1961,"
by amending the heading of chapter 49 and sections 4901, 4903,
4905, 4907, 4909, 4911, 4913, 4915, 4917, 4919, 4921, and 4923 (MCL
600.4901, 600.4903, 600.4905, 600.4907, 600.4909, 600.4911,
600.4913, 600.4915, 600.4917, 600.4919, 600.4921, and 600.4923), as
added by 1986 PA 178, and by adding section 4902; and to repeal
acts and parts of acts.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
CHAPTER 49
MEDIATION AND CASE EVALUATION
Sec. 4901. (1) This chapter provides for mediation of
nondomestic relations disputes in courts in this state. Mediation
is also governed by Michigan court rules.
(2) As used in this chapter: ,
"panel"
(a) "ADR clerk" means the alternative dispute resolution clerk
for the court.
(b) "Alternative dispute resolution process" means a process
designed to resolve a legal dispute in the place of court
adjudication.
(c) "Case evaluation" means a process in which 3 neutral
attorneys are appointed by the court to review the facts and law in
a court case, hear the positions of the parties, and render an
award that can be accepted or rejected by the parties and is
governed by the Michigan court rules.
(d) "Mediation" means a process in which a neutral third party
facilitates communication between parties to, assists in
identifying issues in, and helps explore solutions to promote a
mutually acceptable settlement of a dispute and is governed by the
Michigan court rules.
(e) "Mediation communications" includes 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 considering, initiating, preparing for, conducting,
participating in, continuing, adjourning, concluding, or
reconvening a mediation.
(f) "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.
(g) "Mediation party" means a person that participates in a
mediation and whose agreement is necessary to resolve the dispute.
(h) "Mediator" means an individual who conducts a mediation.
(i)
"Panel" means a mediation case evaluation panel selected
pursuant
to under section 4905.
(j) "Person" means an individual, partnership, corporation,
association, governmental entity, or other legal entity.
(k) "Protected individual" means that term as defined in
section 1106 of the estates and protected individuals code, 1998 PA
386, MCL 700.1106.
(l) "Vulnerable" means that term as defined in section 11 of
the social welfare act, 1939 PA 280, MCL 400.11.
Sec. 4902. (1) Except as otherwise provided in this section
and unless there is an objection to mediation, in a county with an
alternative dispute resolution plan approved by the state court
administrative office, the following actions and proceedings must
be referred to mediation, absent an objection to mediation:
(a) A civil nondomestic relations action in which it is
claimed that damages exceed $25,000.00.
(b) A contested probate proceeding.
(2) Subject to subsection (3), a court shall not refer an
action to which any of the following apply to mediation:
(a) A party to the action is subject to a protection order
protecting another party to the action.
(b) A party to the action is seeking entry of a protection
order against another party to the action.
(c) A party to the action is involved in an abuse or neglect
proceeding.
(d) There is an allegation that a party to the action abused
another party to the action.
(e) There is a request for investigation of a party to the
action pending with the department of health and human services.
(3) Subsection (2) does not apply in either of the following
circumstances:
(a) The court has determined that mediation of the action is
appropriate.
(b) The protected party, party seeking protection, or party to
the action who is allegedly the victim of the abuse requests
mediation.
(4) The judge to whom an action described in subsection (1) is
assigned or the chief judge shall refer the action to mediation by
written order within 30 days after a response to the complaint is
filed, unless an objection to mediation is timely filed.
(5) The mediator shall facilitate communication between the
mediation parties, assisting the parties in reaching any agreements
they wish to discuss, including, but not limited to, settlement,
narrowing of issues, defining discovery parameters, and
establishing any deadlines that do not conflict with deadlines
imposed by court rule or court order.
(6) Additional mediation sessions may be held if agreed by all
mediation parties.
(7) All of the following apply to objections to mediation:
(a) To object to mediation, a mediation party must either
notify the court that the matter is not appropriate for mediation,
as provided in section 1035, or file a written objection to
mediation containing facts to establish good cause, including, but
not limited to, any of the following:
(i) Child abuse or child neglect.
(ii) Domestic abuse.
(iii) Inability of 1 or both mediation parties to negotiate
for themselves at the mediation.
(iv) Reason to believe any mediation party's health or safety
would be endangered by participation in mediation.
(v) Inability to afford the fees and costs of mediation.
(vi) Lack of jurisdiction or improper venue.
(vii) Stipulation of all mediation parties.
(viii) Mediation is unnecessary because the matter is
resolved.
(ix) The matter was assigned to another alternative dispute
resolution process.
(b) A copy of the objection or motion to remove the action
from mediation must be filed with the court and served on all
attorneys of record and pro se parties within 14 days after entry
of an order assigning the action to mediation.
(c) The motion to remove the action from mediation must be set
for hearing within 14 days after it is filed, unless the hearing is
adjourned by agreement of counsel or the court orders otherwise.
(d) A timely filed motion must be heard before the action is
mediated.
(8) Mediation must be conducted in accordance with the
Michigan Standards of Conduct for Mediators, or successor standards
adopted by the state court administrative office, and applicable
Michigan court rules.
(9) Mediation proceedings must be held in private, and
mediation communications must be confidential and privileged.
Except as otherwise provided in this chapter, privileged mediation
communications are not subject to discovery and are inadmissible in
any proceeding.
(10) Except as otherwise provided in this chapter, a mediator,
a mediation party, and any other individual involved in mediation
are not competent to testify to confidential mediation
communications.
(11) Mediation communications may be disclosed under any of
the following circumstances:
(a) All mediation parties agree in writing to disclosure.
(b) A statute or court rule requires disclosure.
(c) The mediation communication is part of the mediator's
report approved under Michigan court rules.
(d) The disclosure is necessary for a court to resolve
disputes about the mediator's fee.
(e) The disclosure is necessary for a court to consider
ordering sanctions under Michigan court rules for a mediation
party's failure to attend.
(f) The disclosure is made during a mediation session that is
or is required by law to be open to the public.
(g) Court personnel reasonably require disclosure to
administer and evaluate the mediation program.
(h) The mediation communication is a threat to inflict bodily
injury or commit a crime, a statement of a plan to inflict bodily
injury or commit a crime, or used to plan a crime, attempt to
commit or commit a crime, or conceal a crime.
(i) All of the following apply to the disclosure:
(i) The disclosure involves a claim of abuse or neglect of a
child, a protected individual, or a vulnerable adult.
(ii) The disclosure is included in a report about the claim or
sought or offered to prove or disprove the claim.
(iii) The disclosure is made to a governmental agency or law
enforcement official responsible for protection against such
conduct or is made in a subsequent or related proceeding based on
the disclosure.
(j) 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.
(k) The mediation communication occurs in an action out of
which a claim of malpractice arises against a mediation participant
and the disclosure is sought or offered to prove or disprove the
claim of malpractice.
(l) 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 mediation 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 that the evidence is not
otherwise available, and that the need for the evidence
substantially outweighs the interest in protecting confidentiality.
(12) All of the following apply to the disclosure of a
mediation communication:
(a) If the disclosure is under an exception under subsection
(9), only the portion of the communication necessary for the
application of the exception may be disclosed.
(b) Disclosure under subsection (11) does not render the
mediation communication subject to disclosure for another purpose.
(c) Evidence or information that is otherwise admissible or
subject to discovery does not become inadmissible or protected from
discovery solely because of its disclosure or use in mediation.
Sec.
4903. (1) An action alleging medical malpractice shall
must
be mediated pursuant to evaluated as provided in this chapter.
(2) The judge to whom an action alleging medical malpractice
is
assigned or the chief judge shall refer the action to mediation
case
evaluation by written order not less
than within 91 days after
the
filing of the answer or answers are filed.
(3)
An action referred to mediation pursuant to case
evaluation
under subsection (2) shall must be
heard by a mediation
panel
selected pursuant to under
section 4905.
Sec.
4905. (1) A mediation case
evaluation panel shall must be
composed
of 5 voting members, 3 of whom shall must be licensed
attorneys,
1 of whom shall must be a licensed or registered health
care provider selected by the defendant or defendants, and 1 of
whom
shall must be a licensed or registered health care provider
selected by the plaintiff or plaintiffs. If a defendant is a
specialist,
the health care provider members of the panel shall
must specialize in the same or a related, relevant area of health
care as the defendant.
(2) Except as otherwise provided in subsection (1), the
procedure
for selecting mediation panel members and their
qualifications
shall be is as prescribed by the Michigan court
rules or local court rules.
(3)
A judge may be selected as a member of a mediation panel ,
but
may shall not preside at the trial of any an action
in which he
or
she served as a mediator.an
evaluator.
(4)
The grounds for disqualification of a mediator an
evaluator
are the same as that those provided
in the Michigan court
rules for the disqualification of a judge.
Sec. 4907. (1) The court shall designate the clerk of the
court, the court administrator, the assignment clerk, or some other
person
to serve as the mediation ADR
clerk.
(2)
The mediation ADR clerk shall set a time and place for the
mediation
case evaluation hearing and send notice to the mediators
evaluators and the attorneys of record at least 28 days before the
date
set for the mediation case
evaluation hearing.
(3)
Adjournments of mediation hearings shall be granted only
The court shall only grant an adjournment of a case evaluation
hearing for good cause, in accordance with the Michigan court
rules.
Sec. 4909. (1) Within 14 days after the mailing of the notice
of
the mediation case
evaluation hearing, each party shall
submit
payment
to the mediation ADR clerk of a mediation case evaluation
fee of $75.00 in the manner specified in the notice of the
mediation
case evaluation hearing. However, if a judge is a member
of
the panel, the fee shall be is
$50.00. Only a single fee is
required of each party, even if there are counterclaims, cross-
claims,
or third-party claims. The mediation ADR clerk shall
arrange
payment to the mediators.evaluators.
(2) If a claim is derivative of another claim, the claims
shall
must be treated as a single claim, with 1 fee to be paid
and
a
single award made by the mediators.evaluators.
(3)
In the case of If the
action alleges multiple injuries to
members of a single family, the plaintiffs may elect to treat the
action as involving 1 claim, with the payment of 1 fee and the
rendering
of 1 lump sum lump-sum award to be accepted or rejected.
If such an election is not made, the plaintiffs shall pay a
separate
fee shall be paid for each plaintiff , and the mediation
panel
shall then make separate awards for each claim, which may be
individually accepted or rejected.
Sec.
4911. (1) At least 7 days before the mediation case
evaluation
hearing date, each party shall submit
to the mediation
ADR clerk 5 copies of the documents pertaining to the issues to be
mediated
evaluated and 5 copies of a concise brief or summary
setting
forth that the party's factual or legal position on issues
presented by the action. In addition, the party shall serve 1 copy
of
each shall be served on each attorney of record.
(2)
Failure to submit the materials to the mediation ADR clerk
as
prescribed in subsection (1) shall subject subjects the
offending party to a $60.00 penalty to be paid at the time of the
mediation
case evaluation hearing and distributed equally among the
mediators.evaluators.
Sec. 4913. (1) A party has the right, but is not required, to
attend
a mediation case
evaluation hearing. If scars,
disfigurement, or other unusual conditions exist, they may be
demonstrated
to the mediation panel by a personal appearance;
however,
testimony shall must not be taken or permitted of any
party.
(2)
The Michigan rules of evidence shall do not apply before
the
mediation a panel. Factual information having that has a
bearing
on damages or liability shall must
be supported by
documentary evidence, if possible.
(3)
Oral presentation shall be in
a case evaluation hearing is
limited to 15 minutes per side unless multiple parties or unusual
circumstances
warrant additional time. The mediation panel may
request information on applicable insurance policy limits and may
inquire about settlement negotiations, unless a party objects.
(4) Statements by the attorneys and the briefs or summaries in
a case evaluation are not admissible in any subsequent court or
evidentiary proceeding.
Sec. 4915. (1) Except as otherwise provided in subsection (2),
within
14 days after the mediation case
evaluation hearing, the
panel shall make an evaluation and notify the attorney for each
party
of its evaluation in writing. The evaluation shall must
include a specific finding on the applicable standard of care. If
an
award is not unanimous, the evaluation shall must so
indicate.
(2) If the panel unanimously determines that a complete action
or defense is frivolous as to any party, the panel shall so state
as to that party. If the action proceeds to trial, the party who
has been determined to have a frivolous action or defense shall
post a cash or surety bond, approved by the court, in the amount of
$5,000.00 for each party against whom the action or defense was
determined to be frivolous. If judgment is entered against the
party
who posted the bond, the bond shall must be used to pay all
reasonable costs incurred by the other parties and any costs
allowed by law or by court rule, including court costs and
reasonable attorney fees.
(3)
The A case evaluation shall must include
a separate award
as to each cross-claim, counterclaim, or third-party claim that has
been filed in the action. For the purpose of this subsection, all
such
claims filed by any 1 party against any other party shall be
are treated as a single claim.
Sec. 4917. (1) Each party shall file a written acceptance or
rejection
of the mediation a panel's evaluation with the mediation
ADR clerk within 28 days after service of the panel's evaluation.
The failure to file a written acceptance or rejection within the 28
days constitutes acceptance.
(2)
A party's acceptance or rejection of the a panel's
evaluation
shall must not be disclosed until the expiration of the
28-day
period, at which time the mediation ADR clerk shall send a
notice indicating each party's acceptance or rejection of the
panel's evaluation.
(3)
In mediations case
evaluations involving multiple parties,
the following rules apply:
(a) Each party has the option of accepting all of the awards
covering the claims by or against that party or of accepting some
and rejecting others. However, as to any particular opposing party,
the party shall either accept or reject the evaluation in its
entirety.
(b) A party who accepts all of the awards may specifically
indicate that he or she intends the acceptance to be effective only
if all opposing parties accept. If this limitation is not included
in the acceptance, an accepting party is considered to have agreed
to entry of judgment as to that party and those of the opposing
parties who accept, with the action to continue between the
accepting party and those opposing parties who reject.
(c) If a party makes a limited acceptance under subdivision
(b) and some of the opposing parties accept and others reject, for
the purposes of the cost provisions of section 4921, the party who
made the limited acceptance is considered to have rejected as to
those opposing parties who accept.
Sec.
4919. (1) If all the parties accept the mediation a
panel's
evaluation, the court shall enter
judgment shall be entered
in
that amount, which shall include includes all fees, costs,
and
interest to the date of judgment.
(2)
In a case involving an
action that involves multiple
parties,
the court shall enter judgment shall be entered as to
those opposing parties who have accepted the portions of the
evaluation that apply to them.
(3) Except as otherwise provided in this chapter for multiple
parties,
if all or part of the evaluation of the mediation panel is
rejected,
the action shall must proceed to trial.
(4)
The mediation ADR clerk shall place a copy of the
mediation
a case evaluation and the parties' acceptances and
rejections in a sealed envelope for filing with the clerk of the
court.
In a nonjury action, the envelope shall must not be opened
and the parties shall not reveal the amount of the evaluation until
the judge has rendered judgment.
(5)
If the mediation case evaluation of an action pending in
the circuit court does not exceed the jurisdictional limitation of
the
district court, the mediation ADR
clerk shall so inform the
trial judge.
Sec.
4921. (1) If a party has rejected an a case evaluation
and
the action proceeds to trial, that the party shall pay the
opposing party's actual costs unless the verdict is more favorable
to
the rejecting party than the mediation case evaluation. However,
if
the opposing party has also rejected the case evaluation, that
the opposing party is entitled to costs only if the verdict is more
favorable
to that the opposing party than the mediation case
evaluation.
(2)
For the purpose of subsection (1), a verdict shall must be
adjusted by adding to it assessable costs and interest on the
amount of the verdict from the filing of the complaint to the date
of
the mediation case evaluation. After this adjustment, the
verdict is considered more favorable to a defendant if it is more
than 10% below the evaluation, and is considered more favorable to
the plaintiff if it is more than 10% above the evaluation.
(3) For the purpose of this section, actual costs include
those costs taxable in any civil action and a reasonable attorney
fee as determined by the trial judge for services necessitated by
the
rejection of the mediation case
evaluation.
(4)
Costs The court shall not be awarded award costs under
this
section if the mediation case evaluation award was not
unanimous.
Sec. 4923. A court shall not delay a trial date scheduled in
advance
of the date set for a mediation case
evaluation hearing
shall
not be delayed because the mediation
case evaluation hearing
was not held, unless the court finds that the interests of justice
are
will be served by the mediation case evaluation proceeding.
This
section shall does not apply if the mediation case evaluation
hearing was adjourned under section 4907(3).
Enacting section 1. Chapter 49A of the revised judicature act
of 1961, 1961 PA 236, MCL 600.4951 to 600.4969, is repealed.