• Ezra N. Goldman

Case Evaluation, Mediation and Arbitration


The courts are very big on Alternative Dispute Resolution, sometimes abbreviated as ADR. The reason for this is simple -- in 2014, there were 95,000 civil cases filed in county circuit courts. http://courts.mi.gov/education/stats/Caseload/Documents/Caseload/2015/Statewide.pdf There are 83 counties in Michigan. The larger counties have a lot of judges but some of the smaller ones only have one or two. To actually try every case that is filed would require having trials all day every day and would not leave time for the Court's other work, like the myriad criminal cases they also have to handle, appeals from District Court and administrative agencies and hearing motions on pending cases. As I have said in other places in my blogs, there are only two ways out of a dispute -- you can work it out or you can fight it out. While you have a right to fight things out in our courts, everyone's preference is to work things out. Thus the focus on ADR.

Case evaluation is mandatory in many civil cases according to MCR 2.403. It is a formal process generally only attended by lawyers. Lawyers file written summaries, meet with a panel of three lawyers and explain their respective cases. The panel issues a recommended award and the parties usually have 28 days to accept or reject the award. If both parties accept it in that time, the case ends for whatever the recommendation was. If anyone rejects, the case continues but any rejecting party might be held liable for attorney fees occasioned by the rejection if he doesn't improve his position by 10% or more. It is important to have good advice of a lawyer as to whether to accept or reject such an award.

Arbitration is something no one can make you do, unless you signed a contract agreeing to it. Arbitration involves ceding substantial rights -- it removes your case from the court and places it in the hands of an individual or a panel whose decision is final and binding. Sometimes it is a great strategy to agree to arbitrate. Sometimes, awful. And the rights to appeal are limited.

Mediation is 3rd option that the courts often use, generally after case evaluation has failed to resolve a case. It involves having a single mediator, usually a lawyer, who is familiar with the judge and the sort of case. He or she can hear the parties out and give an educated opinion as to what is likely to happen. If the parties accept his view, there is rarely any sense in rolling the dice in court when you can get the same result months earlier in mediation and be done with the case, the mounting attorney fees, etc.

When the parties engage in ADR early and in good faith, it is likely that their case will resolve in the shortest time and with the least expense.

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