Bill Text: MI HB5073 | 2017-2018 | 99th Legislature | Introduced

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Bill Title: Civil procedure; alternate dispute resolution; procedures for mediation and case evaluation of civil actions; revise. Amends heading of ch. 49 & secs. 4901, 4903, 4905, 4907, 4909, 4911, 4913, 4915, 4917, 4919, 4921 & 4923 of 1961 PA 236 (MCL 600.4901 et seq.); adds sec. 4902 & repeals ch. 49A of 1961 PA 236 (MCL 600.4951 - 600.4969).

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2017-10-17 - Recommendation Concurred In [HB5073 Detail]

Download: Michigan-2017-HB5073-Introduced.html

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HOUSE BILL No. 5073

 

 

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.