Alternative Dispute Resolution
The ADR Section is dedicated to educating Michigan’s legal community and the public regarding alternative dispute resolution. The invitation to collaborate with the State Bar and the Michigan Bar Journal staff to produce this ADR theme issue presented an opportunity perfectly in sync with the section’s mission. Of course, we accepted the invitation with enthusiasm.
The timing is good. There is much to report at this juncture. Michigan’s ADR movement has entered a new phase. Recognizing the growing use and popularity of ADR in this state and nationally, the Michigan Supreme Court appointed a Dispute Resolution Task Force in 1998. The task force was charged with exploring whether and how facilitative mediation and other ADR options can be made accessible through Michigan’s state courts. The task force’s report to the Court included a set of written recommendations and proposed court rule changes that would allow judges to refer virtually all civil cases to nonbinding ADR processes made available to litigants through court-annexed ADR programs. The Court has actively sought feedback from Michigan lawyers and the public since the proposed rules were published a year ago. The Supreme Court’s decision on whether to adopt the rules may be announced before this issue goes to press.
Meanwhile, ADR continues to gain support and attract proponents on its own. As I write this introduction, I have on my desk dozens of program brochures and invitations from various bar sections and law organizations. Virtually every one of them includes a segment on ADR. This fact alone is an exciting indicator of ADR’s adaptability and expanding acceptance among the state’s citizens and within the legal community. New faces join familiar ones as we prepare for the next stage in Michigan’s ADR movement.
What follows in this issue is a snapshot of our state’s progress to date; a status report on current trends and recent events in the field of ADR. Laurence Connor and Michael Coakley, both former chairs of the ADR Section, offer a useful summary of the proposed court rules. Every Michigan lawyer should read the proposed rules themselves. However, if you read nothing else about the rules, read this summary. Deborah Berecz, a family lawyer and experienced private mediator, describes varied and evolving uses of mediation in the family law context. In their article, co-authors Jeffrey Mayer and Theodore Seitz provide a useful analysis concerning consent issues in arbitration.
In addition, we have included pieces that offer observations from our past and ideas about how ADR may serve Michigan’s citizens in the future. James McNally, Settlement Director for the Michigan Court of Appeals, provides a history of that court’s ADR program from its pilot stages in 1995 and 1996 to the present. McNally offers a summary of lessons learned in planning and implementing the Appellate Court’s unique mediation program. In a piece discussing mediation qualifications, three co-authors step into the fray a bit, exploring concerns raised about the use of trained mediators from disciplines other than law. The piece itself is a collaboration among two lawyers and a social scientist, all three of whom are trained mediators: Dale Ann Iverson, this writer, and Deborah Boersma Zondervan. Of course, any opinions expressed in this collection of articles are those of the authors and do not necessarily represent the formal positions of the ADR Section or the State Bar of Michigan.
This collection of articles may answer some questions for readers. It raises questions, too. This is not inadvertent. The last decade has brought tremendous changes to Michigan’s dispute resolution landscape. Until now, those changes have evolved on a more or less ad hoc basis, outside the courts’ purview. The proposed amendments to the Michigan Court Rules would change this. If adopted, the rules will shape ADR options in the future. It is wise to proceed with caution and discernment. Good stewardship requires no less.
Even if the proposed new rules are not adopted and Michigan’s courts do nothing further to encourage the use of ADR, the public’s demand for it is not likely to diminish. ADR works. It has earned its place. However, what forms it will take in the future remain to be seen. That chapter has not yet been written.
Research and our own experience tell us that the best ADR programs, i.e., those receiving high marks in user satisfaction, as well as settlement rates, are those that balance the interests of their diverse stakeholders. Those interests, indeed, your interests and the interests of your clients, cannot be addressed if they are not known. It is not too late to add your voice to Michigan’s ADR discussion. Consider yourself invited to the table. It is your table, too.
On behalf of the ADR Section, I wish to acknowledge the behind-the-scenes efforts of several people who made this project possible: Thank you to editors Nancy F. Brown and Angela Bergman, for their capable assistance in bringing this project to fruition, and to the MBJ Advisory Board for its decision to include an ADR theme issue in its line-up this year. Special thanks are due to our section liaison editor for this issue, Benjamin A. Kerner. An ADR pioneer in his own right, Kerner receives a measure of credit for whatever may be especially good or effective in these pages. Finally, thank you to all of the authors for first agreeing to contribute to this issue and then, more importantly, following through. Thanks for shining a light.
The ADR Section welcomes your comments, questions and requests for information about this exciting and rapidly changing field of practice. For additional information about programming or to join this section, please feel free to call me at (616) 342-9046 or visit the section’s website at www.michbar.org/sections/adrs/