Court hears comments on mediation in child protective hearings

By Cynthia Price
Legal News

The Michigan Supreme Court held a hearing on proposed administrative changes Wednesday, March 28, and although attendance was sparse, the justices heard some very detailed and specific comments.

Though there were 11 proposals on the schedule, only five of them drew comment, one of which was just made in passing. And there was only one where remarks were lengthy.

That was the final proposal of the day, 2017-19, which concerned, according to the summary provided in the hearing notice, “Whether to adopt the proposed amendments of MCR 2.410 and 2.411 and proposed addition of MCR 3.970 regarding mediation in child protection cases.”

The staff comment on the proposal, which is not “an authoritative construction by the Court,” but can be a useful summary, says the proposed amendment and addition “would provide explicit authority for judges to order mediation in child protection proceedings.”

Peggy L. MacDougall, program manager for Resolution Services Center of Central Michigan said, “I speak in support of the proposed adoption of this rule to provide mediation. There are multiple benefits for children, DHHS [the Department of Health and Human Services], and the courts including less time spent in foster care, parents feeling like they have more of a voice, fewer contested hearings, and more cooperative relationships. Mediation helps the parents stay focused on the needs of the children; the presence of a third party neutral keeps that the focus.”

Chief Justice Stephen Markman asked MacDougall about the written comments submitted by John S. Pallas, manager of the Criminal Justice and Victim Rights Practice Group in the Attorney General’s office.

Among other objections to adoption, the letter states, “Mediation, since it could be ordered at any point in the proceedings, would cause unnecessary delay in achieving permanence for children.” The chief justice ultimately asked how MacDougall felt about adding language requiring an order of mediation early in the process.

MacDougall responded that she felt most dispute resolution centers would not take issue with that. “I think if the wording said that mediation is ordered within X number of days of the beginning of the case and completed within X number of days, we would welcome that. And we’d be able to complete it.”

Justice Kurtis Wilder asked if MacDougall felt that there were instances where mediation should not occur, and whether that should be left to the discretion of the trial court or included in the rule. (The proposed rule does preclude referral to mediation if the parties are subject to a personal protection order, and states “... the mediator must make reasonable efforts to screen for the presence of coercion or violence that would make mediation physically or emotionally unsafe for any participant...”) MacDougall noted that she thought the trial courts could make such determinations and that the centers also screen for such factors.

Following that, attorney Rebecca Shiemke spoke on behalf of the Access to Justice (ATJ) Committee of the State Bar of Michigan. SBM Executive Director Janet Welch submitted written comments, which reflected the stance of the full Board of Commissioners.

As explained by SBM Public Policy Counsel Katie Hennessy, who was in attendance, the process is that the board considers recommendations by committees and sections – in this case, the ATJ Committee and the Alternative Dispute Resolution Section – and develops its own recommendations for submission.

Unlike the aforementioned Attorney General’s office comment and one from the Michigan Judges Association, the SBM Board of Commissioners was in support of the proposal, but had certain recommended amendments based on what the ATJ had developed.

Shiemke said that there was concern on the part of the ATJ about fees, and the committee would like to see them addressed in the rule. “Most are done by dispute resolution centers, which are supported other ways, but we ask that the rule provide a bar against the court charging the litigants where they can’t afford it.” Justice Richard Bernstein asked how the court might delineate who qualifies for that. The official SBM comment suggests adding, “If a party qualifies for a waiver or suspension of fees under MCR 2.002 or the court determines that the party is unable to pay the cost of the mediator provider and free or low-cost mediation services are not avaìlable, the court shall not order a party to pay any position of the mediation fees.”

The ATJ Committee also had concerns about mediator qualification. The proposed rule sets out qualifications in detail, but says they are not necessary if both parties agree on the mediator. Shiemke said the committee feels they should apply regardless.

These were among several recommendations in the SBM letter. To read that and others, visit http://courts.mi.gov/Courts/MichiganSupremeCourt/rules/court-rules-admin-matters/pages/chapter-3-special-proceedings-and-actions.aspx and find 2017-19 on the list.

Other comments included those of Elliot Gruszka of the Grand Rapids City Attorney’s office on a proposal (2016-07) concerning practices regarding criminal defendants in appeals. He confined his remarks to approval of the portion of the proposal which changed requirements for approval of submitting briefs over 50 pages, based on what Gruszka saw as the recognition that page-number limits and other formatting concerns (such as double-spacing) were outdated based on current technology. He urged the justices to consider other similar rule updates.

Another comment was received on a proposal that “reflect[s] recent changes to the appellate counsel assignment process” – most noteworthy are “requiring judges to provide a statement of reason when appellate counsel is denied” and “requiring the filing of all lower court transcripts.” Michigan Appellate Assigned Counsel System Administrator Brad Hall spoke in favor, saying that the transcript requirement would save appellate courts time, and was thanked for his good work by CJ Markman. Jacqueline McCann of the State Appellate Defenders Office asked for a minor change in the proposed wording.

In addition, an attorney spoke in favor of Proposal 2016-20, generated by SBM, to amend MCR 8.119 to clarify “that a protective order may authorize parties to file materials without also filing a motion to seal.”

She noted that it would help save time in crowded business court dockets.
 

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