Columns
Poll workers help ensure safeguards in the voting process
October 29 ,2026
Election inspectors, generally referred to as “poll workers,” are the front-line protectors of American democracy. The ranks of these part-time public servants are not filled with career civil servants nor politicians. They are your neighbors and come from all walks of life.
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By Samuel Damren
Election inspectors, generally referred to as “poll workers,” are the front-line protectors of American democracy. The ranks of these part-time public servants are not filled with career civil servants nor politicians. They are your neighbors and come from all walks of life.
In Michigan general elections, more than 35,000 individuals serve as election inspectors to assist election officials administer voting in thousands of separate elections and on ballot issues. Across the United States, the number of poll workers for the 2024 election topped 770,000.
In Michigan, as they are across the country, elections are run locally subject to state controls through strict procedures incorporating multiple “checks and balances,” bipartisan teams, and “back-up” protocols.
To be an election inspector in Michigan requires training which is obligatory, detailed, and time consuming. The pay is modest with rates ranging from $175 to $300 per day. Many inspectors volunteer their time without pay. Their work is overseen and directed by election officials and the Michigan Department of State consistent with a detailed statutory framework.
Election inspectors must follow the “Election Inspector’s Manual” (EIM). A multi-page manual for election officials serves as template for the EIM and is posted on the Michigan Department of State website. It is supplemented by information from local officials keyed to their election jurisdiction.
EIMs are user friendly but extremely detailed, including screen shots and pictures of the set up and operation of Electronic Poll Books (EPB), Voter Assist Terminal (VAT), tabulators and record keeping. It is structured as a “logic tree” taking election inspectors from the beginning of voting process on election day to conclusion. It provides step-by-step methods to address specific issues.
Diana Pratt is my neighbor. She is a retired professor of Legal Writing at Wayne State University Law School, a position she held for 26 years. The upcoming November election will be the fourth time she has served as an election inspector in Washtenaw County.
Based on her training and personal experience, Professor Pratt observed, and wants me to share with you, that “our election system is impressive. Multiple checks ensure that the system is safe and secure from outside interference. The EPB and election inspectors also ensure that only those registered to vote are allowed to vote.”
“When the polls are closed, the tabulated election results, back-up paper ballots, and all the additional information prepared during the day are transported to voting headquarters by a Democratic and Republican member of the precinct team,” Pratt indicated. “Every voter should be confident that their votes will be counted.”
If it occurs, admissible evidence establishing that a vote was unlawful is straight forward: Proof that named voter X registered to vote, that under law named voter X was not entitled to vote, and that voter X voted in an election. Criminal fraud charges require proof of intent which can be problematic.
Conjecture, speculation, inadmissible hearsay, and unsupported accusations of illegal voting do not establish anything. Likewise, “irregularities” in election processing do not establish fraudulent conduct unless causally connected to the knowing acceptance of a fraudulent vote.
In all instances, identifying the name of the person who registered to vote illegally or the name used to cast a fraudulent vote is fundamental. If you can’t identify those names, you have nothing upon which to base an allegation of illegal voting, much less to then begin to assemble the admissible and necessary evidence to prove it.
In past instances of alleged voter fraud, purported lists of “dead” voters have been presented to various authorities only to find upon investigation that the voters were either not dead or, if deceased, did not actually vote. Similar unsubstantiated claims of voter fraud in lawsuits have resulted in sanctions against counsel.
While rare, voter fraud does occur in Michigan. Charges and convictions for voter fraud since 2020 number in the handful across the state. The most recent charges were brought by Attorney General Dana Nessel in August of 2026 against five non-citizens that voted in the 2024 election.
Beginning with 35,000 front-line poll workers through the entire registration and voting process, Michigan elections have repeatedly proven to be free from outside interference and competently conducted in non-partisan tradition.
Election inspectors, generally referred to as “poll workers,” are the front-line protectors of American democracy. The ranks of these part-time public servants are not filled with career civil servants nor politicians. They are your neighbors and come from all walks of life.
In Michigan general elections, more than 35,000 individuals serve as election inspectors to assist election officials administer voting in thousands of separate elections and on ballot issues. Across the United States, the number of poll workers for the 2024 election topped 770,000.
In Michigan, as they are across the country, elections are run locally subject to state controls through strict procedures incorporating multiple “checks and balances,” bipartisan teams, and “back-up” protocols.
To be an election inspector in Michigan requires training which is obligatory, detailed, and time consuming. The pay is modest with rates ranging from $175 to $300 per day. Many inspectors volunteer their time without pay. Their work is overseen and directed by election officials and the Michigan Department of State consistent with a detailed statutory framework.
Election inspectors must follow the “Election Inspector’s Manual” (EIM). A multi-page manual for election officials serves as template for the EIM and is posted on the Michigan Department of State website. It is supplemented by information from local officials keyed to their election jurisdiction.
EIMs are user friendly but extremely detailed, including screen shots and pictures of the set up and operation of Electronic Poll Books (EPB), Voter Assist Terminal (VAT), tabulators and record keeping. It is structured as a “logic tree” taking election inspectors from the beginning of voting process on election day to conclusion. It provides step-by-step methods to address specific issues.
Diana Pratt is my neighbor. She is a retired professor of Legal Writing at Wayne State University Law School, a position she held for 26 years. The upcoming November election will be the fourth time she has served as an election inspector in Washtenaw County.
Based on her training and personal experience, Professor Pratt observed, and wants me to share with you, that “our election system is impressive. Multiple checks ensure that the system is safe and secure from outside interference. The EPB and election inspectors also ensure that only those registered to vote are allowed to vote.”
“When the polls are closed, the tabulated election results, back-up paper ballots, and all the additional information prepared during the day are transported to voting headquarters by a Democratic and Republican member of the precinct team,” Pratt indicated. “Every voter should be confident that their votes will be counted.”
If it occurs, admissible evidence establishing that a vote was unlawful is straight forward: Proof that named voter X registered to vote, that under law named voter X was not entitled to vote, and that voter X voted in an election. Criminal fraud charges require proof of intent which can be problematic.
Conjecture, speculation, inadmissible hearsay, and unsupported accusations of illegal voting do not establish anything. Likewise, “irregularities” in election processing do not establish fraudulent conduct unless causally connected to the knowing acceptance of a fraudulent vote.
In all instances, identifying the name of the person who registered to vote illegally or the name used to cast a fraudulent vote is fundamental. If you can’t identify those names, you have nothing upon which to base an allegation of illegal voting, much less to then begin to assemble the admissible and necessary evidence to prove it.
In past instances of alleged voter fraud, purported lists of “dead” voters have been presented to various authorities only to find upon investigation that the voters were either not dead or, if deceased, did not actually vote. Similar unsubstantiated claims of voter fraud in lawsuits have resulted in sanctions against counsel.
While rare, voter fraud does occur in Michigan. Charges and convictions for voter fraud since 2020 number in the handful across the state. The most recent charges were brought by Attorney General Dana Nessel in August of 2026 against five non-citizens that voted in the 2024 election.
Beginning with 35,000 front-line poll workers through the entire registration and voting process, Michigan elections have repeatedly proven to be free from outside interference and competently conducted in non-partisan tradition.
The Law Is King: A sinner, a saint, and the quiet guardians of the Rule of Law
October 15 ,2026
In January 1776, months before the Continental Congress declared independence, an immigrant pamphleteer named Thomas Paine compressed the entire case for American self-government into a slim, plain-spoken pamphlet.
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By Donald M. Fenton
In January 1776, months before the Continental Congress declared independence, an immigrant pamphleteer named Thomas Paine compressed the entire case for American self-government into a slim, plain-spoken pamphlet. “Common Sense” did not merely argue for separation from Britain; it named the principle that would have to replace a king. “So far as we approve of monarchy,” Paine wrote, “in America THE LAW IS KING. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.”
Six months later, in July 1776, the Declaration of Independence made it official — all are created equal, endowed with unalienable rights, and governed only by the consent of the governed. Paine supplied the spark; the Declaration supplied the covenant. But a covenant is only words until someone is willing, day after day, to make the law actually reign.
We tend to picture the guardians of that covenant in the marble buildings of Washington. Yet most Americans will never argue before the Supreme Court. We meet the promise of 1776 in far humbler rooms — a traffic docket, a sentencing hearing, a district courtroom in a county seat. The economist and former labor secretary Robert Reich has argued that a democracy survives only on commitments its citizens honor even when they are inconvenient: respect for the rule of law in spirit as well as letter, protection of independent institutions, and the understanding that no one — however powerful — stands above the law. In “The Common Good,” Reich warns that when winning at any cost replaces those commitments, the whole civic fabric frays.
Chief Justice John Roberts once distilled the ideal into a single sentence: “We do not have Obama judges or Trump judges.” What we have, he insisted, are judges striving to do equal justice to whoever appears before them.
I do not write as a detached observer. I write as a man who has been, in the same season of life, both saint and sinner — and who has met the law from the gallery and from the defendant’s chair alike.
The saint, such as he is: this year I became a certified paralegal and an honored graduate — featured at the 2026 commencement — of the distinguished, ABA-approved paralegal-studies program led by Sara Bowman and Robert Long at Oakland Community College’s Orchard Ridge campus in Farmington Hills.
Over the past two years I have published three articles in The Detroit Legal News and The Oakland County Legal News, and I have taken my seat at the Oakland County Bar Association’s “Boot Camp” for new lawyers and paralegals. I have spent this chapter of my life studying the law with something close to reverence.
The sinner is a plainer story. In 2025 I was a tourist in Cadillac, up north for the skiing — I am an active skier and a senior-division Alpine slalom winner — when I hoisted a few too many brews and made the worst decision a person can make with car keys in his pocket. I tried to drive back to my hotel. I earned my first and only OWI.
And so I stood before the Honorable Corey Wiggins of the 84th District Court in Cadillac. He was not lenient — the law is not lenient about a car driven drunk, nor should it be. But he was scrupulously, proportionately fair. He read the situation, weighed the evidence, balanced the interest of the state against the rights of the individual, and rendered judgment by the book — no lighter for my credentials, no heavier for my folly. My own attorney afterward described him as a level-headed judge who called it exactly as the law required. In that courtroom I experienced, as a defendant, the very principle I had studied as a student: that the law is king, that no man is above it, and that every person — the erring tourist emphatically included — is entitled to equal treatment and equal protection under it. For teaching me that lesson from the bench rather than from a book, Judge Wiggins is my hero.
His path lends weight to that fairness. Before Governor Whitmer appointed him in 2025, Wiggins was Wexford County’s elected prosecutor, and before that a defense attorney in his own firm — he has stood at every table in the courtroom. A longtime volunteer with the Cadillac Area YMCA and Silent Observer, he is the kind of judge most Americans actually encounter: local, accessible, and quietly determined to get it right.
I met my second hero in a very different setting. At that Oakland County Bar Association Boot Camp, one of the presenters was the Honorable Michael Warren, who has sat on Oakland County’s Sixth Judicial Circuit Court since 2002 and presided over hundreds of jury trials. I came away equally impressed—by his presentations, his books, and a command of constitutional law that is rare on any bench. Judge Warren has spent decades teaching the country why its founding principles still matter: in 2009, with his 10-year-old daughter Leah, he co-founded Patriot Week, now marked across the nation; he teaches constitutional law, hosts a civics podcast, and has written a line-by-line study of the Declaration of Independence — the very document whose promises he applies from the bench. Here is a jurist who understands that equal justice under law is not a slogan but a discipline.
Notice something about these two men. One was placed on the bench by a Republican governor, the other by a Democrat. That is not an accident of my admiration; it is the point. The rule of law is the property of no party. It is the common inheritance Paine described — the king we chose instead of a king — and it works the same for the powerful and the powerless, the celebrated and the ashamed.
These are my personal heroes in the judicial branch of our tripartite system — the branch that, on its best days, holds the other two to the same law it held me to on my worst. Two hundred and fifty years after Paine, the law is king only because people are willing to make it so — not once, in a famous document, but every ordinary morning, in courthouses most of us drive past without a second thought. I know, because one of them held me to it. And I am grateful.
Editor’s note: Donald M. Fenton is a certified paralegal and consulting engineer in southeastern Michigan. Quotations from Thomas Paine are drawn from Common Sense (1776); the founding promises referenced are from the Declaration of Independence (1776). The framework of the rule of law and the common good draws on Robert B. Reich, The Common Good (Alfred A. Knopf, 2018). The remark by Chief Justice John Roberts is from his November 2018 public statement. The account of the author’s case reflects his own recollection.
In January 1776, months before the Continental Congress declared independence, an immigrant pamphleteer named Thomas Paine compressed the entire case for American self-government into a slim, plain-spoken pamphlet. “Common Sense” did not merely argue for separation from Britain; it named the principle that would have to replace a king. “So far as we approve of monarchy,” Paine wrote, “in America THE LAW IS KING. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.”
Six months later, in July 1776, the Declaration of Independence made it official — all are created equal, endowed with unalienable rights, and governed only by the consent of the governed. Paine supplied the spark; the Declaration supplied the covenant. But a covenant is only words until someone is willing, day after day, to make the law actually reign.
We tend to picture the guardians of that covenant in the marble buildings of Washington. Yet most Americans will never argue before the Supreme Court. We meet the promise of 1776 in far humbler rooms — a traffic docket, a sentencing hearing, a district courtroom in a county seat. The economist and former labor secretary Robert Reich has argued that a democracy survives only on commitments its citizens honor even when they are inconvenient: respect for the rule of law in spirit as well as letter, protection of independent institutions, and the understanding that no one — however powerful — stands above the law. In “The Common Good,” Reich warns that when winning at any cost replaces those commitments, the whole civic fabric frays.
Chief Justice John Roberts once distilled the ideal into a single sentence: “We do not have Obama judges or Trump judges.” What we have, he insisted, are judges striving to do equal justice to whoever appears before them.
I do not write as a detached observer. I write as a man who has been, in the same season of life, both saint and sinner — and who has met the law from the gallery and from the defendant’s chair alike.
The saint, such as he is: this year I became a certified paralegal and an honored graduate — featured at the 2026 commencement — of the distinguished, ABA-approved paralegal-studies program led by Sara Bowman and Robert Long at Oakland Community College’s Orchard Ridge campus in Farmington Hills.
Over the past two years I have published three articles in The Detroit Legal News and The Oakland County Legal News, and I have taken my seat at the Oakland County Bar Association’s “Boot Camp” for new lawyers and paralegals. I have spent this chapter of my life studying the law with something close to reverence.
The sinner is a plainer story. In 2025 I was a tourist in Cadillac, up north for the skiing — I am an active skier and a senior-division Alpine slalom winner — when I hoisted a few too many brews and made the worst decision a person can make with car keys in his pocket. I tried to drive back to my hotel. I earned my first and only OWI.
And so I stood before the Honorable Corey Wiggins of the 84th District Court in Cadillac. He was not lenient — the law is not lenient about a car driven drunk, nor should it be. But he was scrupulously, proportionately fair. He read the situation, weighed the evidence, balanced the interest of the state against the rights of the individual, and rendered judgment by the book — no lighter for my credentials, no heavier for my folly. My own attorney afterward described him as a level-headed judge who called it exactly as the law required. In that courtroom I experienced, as a defendant, the very principle I had studied as a student: that the law is king, that no man is above it, and that every person — the erring tourist emphatically included — is entitled to equal treatment and equal protection under it. For teaching me that lesson from the bench rather than from a book, Judge Wiggins is my hero.
His path lends weight to that fairness. Before Governor Whitmer appointed him in 2025, Wiggins was Wexford County’s elected prosecutor, and before that a defense attorney in his own firm — he has stood at every table in the courtroom. A longtime volunteer with the Cadillac Area YMCA and Silent Observer, he is the kind of judge most Americans actually encounter: local, accessible, and quietly determined to get it right.
I met my second hero in a very different setting. At that Oakland County Bar Association Boot Camp, one of the presenters was the Honorable Michael Warren, who has sat on Oakland County’s Sixth Judicial Circuit Court since 2002 and presided over hundreds of jury trials. I came away equally impressed—by his presentations, his books, and a command of constitutional law that is rare on any bench. Judge Warren has spent decades teaching the country why its founding principles still matter: in 2009, with his 10-year-old daughter Leah, he co-founded Patriot Week, now marked across the nation; he teaches constitutional law, hosts a civics podcast, and has written a line-by-line study of the Declaration of Independence — the very document whose promises he applies from the bench. Here is a jurist who understands that equal justice under law is not a slogan but a discipline.
Notice something about these two men. One was placed on the bench by a Republican governor, the other by a Democrat. That is not an accident of my admiration; it is the point. The rule of law is the property of no party. It is the common inheritance Paine described — the king we chose instead of a king — and it works the same for the powerful and the powerless, the celebrated and the ashamed.
These are my personal heroes in the judicial branch of our tripartite system — the branch that, on its best days, holds the other two to the same law it held me to on my worst. Two hundred and fifty years after Paine, the law is king only because people are willing to make it so — not once, in a famous document, but every ordinary morning, in courthouses most of us drive past without a second thought. I know, because one of them held me to it. And I am grateful.
Editor’s note: Donald M. Fenton is a certified paralegal and consulting engineer in southeastern Michigan. Quotations from Thomas Paine are drawn from Common Sense (1776); the founding promises referenced are from the Declaration of Independence (1776). The framework of the rule of law and the common good draws on Robert B. Reich, The Common Good (Alfred A. Knopf, 2018). The remark by Chief Justice John Roberts is from his November 2018 public statement. The account of the author’s case reflects his own recollection.
The opening statement in a labor arbitration
October 08 ,2026
The opening statement is crucial in labor arbitration cases. The opening statement gives advocates the opportunity to successfully put forth their client’s case in the most favorable light to the arbitrator at the very beginning of the arbitration hearing.
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Lee Hornberger
Introduction
The opening statement is crucial in labor arbitration cases. The opening statement gives advocates the opportunity to successfully put forth their client’s case in the most favorable light to the arbitrator at the very beginning of the arbitration hearing.
An opening statement is a brief and general outline of what the dispute is about and what the advocate intends to prove. Even if the advocate prepares a written opening statement, it should be presented orally.
Furthermore, “[t]he opening statements set the stage for the testimony to come. … They should explain to the arbitrator what each party’s case is about.”
The Opening Statement serves a unique function
In a labor arbitration case, the opening statement is given in a unique adjudicative environment. This environment differs from court litigation or employment arbitration where the parties will have provided information, including pleadings and briefing, to the adjudicator prior to the evidentiary hearing. Presentation of information generally is not provided prior to a labor arbitration. The labor arbitrator will usually know little, if anything, about the case. At best, the arbitrator only will know whether the case is a discipline or a contract interpretation case and will learn the issue moments before the opening statement. This lack of prior knowledge highlights the extreme importance of the opening statement in a labor arbitration case.
An effective opening statement is carefully prepared and practiced ahead of time before it is given to the arbitrator.
Opening statements should be carefully thought out, and not be unduly argumentative, in order to accomplish their purpose to succinctly apprise the arbitrator of the party's theory of the case and what evidence that party intends to use to prove its case.
In a discipline case, the employer gives its opening statement first. In a contract interpretation case, the union gives its opening statement first. This is based on both tradition as well as which party has the burden of proof. If an advocate plans to ask for a burden of proof other than the preponderance of the evidence in their post-hearing argument, the advocate should consider giving the arbitrator notice of that in the opening statement.
To overcome the hurdle of the arbitrator’s lack of prior knowledge of the facts, the advocate must effectively promote the interests of their client, whether the employer or the union. The advocate should not overpromise and should remember that what is said during the opening statement is not evidence.
The Opening Statement describes the issues
The opening statement tells the arbitrator the issues in the case, including both the substantive and procedural issues. The opening statement must clearly inform the arbitrator of the applicable sections of the pertinent documents, including the collective bargaining agreement (CBA), employment manual, established policies, and other operative documents as well as the page numbers in the documents where those sections can be found. It is extremely important that the arbitrator know exactly where in these documents, including page numbers, the arbitrator can go to better understand the case and the parties’ viewpoints.
The advocate should pay attention to whether the arbitrator is taking notes during the opening statement. The pace with which the opening statement is delivered should be adjusted by paying careful attention to the arbitrator’s speed and depth of note taking. The advocate’s goal is to make the arbitrator’s job easier. Sometimes the pace at which the advocate delivers the opening statement, including pauses, can be helpful. The arbitrator’s hearing notes might ultimately be the record upon which the arbitrator’s memory of the hearing will largely be based.
The Opening Statement outlines the facts
The opening statement should, in a concise, clear fashion, outline the “who, what, where, how, and when” of the case. Once the opening statement is completed, the arbitrator should have a clear understanding of who the main actors are, what happened to give rise to the grievance, where the situation occurred, how the situation unfolded, and the timeline of the situation.
The opening statement should also address unfavorable aspects of the case. The arbitrator should not hear these unfavorable aspects for the first time during the other side’s opening statement. The advocate should use this opportunity to present adverse facts in the best light.
The second opening statement (for example, the union’s opening statement in a discipline case) should usually respond to issues raised in the first opening statement rather than waiting for the evidentiary portion of the hearing. For example, if the employer argues for the first time ever in its opening statement that the grievance or demand for arbitration is untimely, the union should tell the arbitrator, if true, during its opening statement that this issue was never previously raised by the employer. The arbitrator should be told about these procedural issues before the end of the opening statements. By careful planning of the opening statement, including the use of the grievance procedure, the advocate should anticipate the other side’s arguments and effectively respond to them.
The opening statement should be a careful, nonargumentative presentation of the case in a professional and courteous fashion. It will summarize in a convincing manner the advocate’s main arguments, including the facts and precisely what the advocate intends to prove.
The Opening statement specifies the relief sought
The opening statement should also spell out the relief that the party is seeking. If the arbitrator knows what remedy the party is seeking, it is easier for the arbitrator to understand the evidence as it comes in.
In discipline cases, the union will occasionally refrain from making its opening statement until after the employer offers its evidence and rests. Some believe this approach prevents the arbitrator from having a balanced or full understanding of the case at the start. On the other hand, others believe that the union advocate can better serve the interests of the grievant by not playing the advocate’s hand until after hearing all the employer’s evidence. Deciding to delay one’s opening is an important strategic decision that should not be made lightly. One risk of delaying one’s opening statement is that such delay might give the other side the advantage of the primacy effect. The rule of primacy means that the side heard first will be more persuasive than the side that is heard later. One possible benefit of delaying one’s opening is to hold back on one’s presentation until after the other side has played its cards.
The Opening Statement in a virtual hearing
In a virtual arbitration hearing via Zoom or other platform, the advocate must consider the different methods and characteristics of communication during a virtual arbitration. Depending on the settings of the observer’s monitor, the screen might display the advocate’s face on the entire screen. In addition, there might be a short delay between the advocate’s speaking and when the speaking is heard by the arbitrator. It is important that the advocate speak more slowly.
The advocate should also consider using Share Screen to help emphasize the relevant CBA provisions and other key documents. Share Screen is a tool available on the Zoom platform, which allows the user to share the user’s documents on the monitor to be seen by other participants in the hearing. As with other portions of the opening statement, the advocate should prepare and practice the Share Screen procedure ahead of time. The hearing is not the place to try Share Screen for the first time.
Pre-sharing of exhibits occurs much more frequently in virtual arbitration than in in-person arbitration. By using Share Screen, the arbitrator can see the relevant exhibit and the advocates at the same time. In addition, PowerPoint slides and exhibits can be displayed in the arbitration via Share Screen during the opening statement.
In all arbitrations, cooperation, professionalism, and mutual respect should be paramount. The mantra for virtual arbitrations is “be kind.”
Conclusion
An effective opening statement tells the arbitrator in a concise, courteous, fashion exactly what the facts in the case are, what the issues are, how the advocate wants the arbitrator to rule, and exactly what relief is being requested. In addition, with virtual arbitration, the advocate’s effective use of Share Screen during a Zoom arbitration can create a powerful opening statement.
____________________
Lee Hornberger is a member of the Professional Resolution Experts of Michigan, LLC (PREMi), an invitation-only group of Michigan’s top mediators, a member of the National Academy of Arbitrators, and a Diplomate Member of National Academy of Distinguished Neutrals. He is a former Chair of the Alternative Dispute Resolution Section of the State Bar of Michigan, Editor Emeritus of The Michigan Dispute Resolution Journal, a former member of the SBM’s Representative Assembly, a former President of the Grand Traverse-Leelanau-Antrim Bar Association, and a former Chair of the Traverse City Human Rights Commission. He is a Fellow of the American Bar Foundation and a Fellow of the SBM Foundation.He has received the Distinguished Service Award from the SBM ADR Section in recognition of significant contributions to the field of dispute resolution. He has received the George Bashara Award from the ADR Section in recognition of exemplary service. He has received the Hero of ADR Awards from the ADR Section. He is the Reviewing Editor of Chapters 8 and 10, Elkouri & Elkouri, “How Arbitration Works” (9th ed. 2026).
He is a Michigan Lawyers Weekly 2026 Michigan Legal 250 Honoree for Alternative Dispute Resolution. He is in Best Lawyers of America for arbitration and mediation. He has a First Tier ranking in Northern Michigan for Mediation by Best Law Firms and a Second Tier ranking in Northern Michigan for Arbitration by Best Law Firms. He is on the Michigan Super Lawyers list for alternative dispute resolution.
While serving with the U.S. Army in Vietnam, he was awarded the Bronze Star Medal and Army Commendation Medals. The unit he was in was awarded the Meritorious Unit Commendation and the Republic of Vietnam Gallantry Cross Unit Citation with Palm.
He holds his B.A. and J.D. cum laude from the University of Michigan and his LL.M. in Labor Law from Wayne State University.
The opening statement is crucial in labor arbitration cases. The opening statement gives advocates the opportunity to successfully put forth their client’s case in the most favorable light to the arbitrator at the very beginning of the arbitration hearing.
An opening statement is a brief and general outline of what the dispute is about and what the advocate intends to prove. Even if the advocate prepares a written opening statement, it should be presented orally.
Furthermore, “[t]he opening statements set the stage for the testimony to come. … They should explain to the arbitrator what each party’s case is about.”
The Opening Statement serves a unique function
In a labor arbitration case, the opening statement is given in a unique adjudicative environment. This environment differs from court litigation or employment arbitration where the parties will have provided information, including pleadings and briefing, to the adjudicator prior to the evidentiary hearing. Presentation of information generally is not provided prior to a labor arbitration. The labor arbitrator will usually know little, if anything, about the case. At best, the arbitrator only will know whether the case is a discipline or a contract interpretation case and will learn the issue moments before the opening statement. This lack of prior knowledge highlights the extreme importance of the opening statement in a labor arbitration case.
An effective opening statement is carefully prepared and practiced ahead of time before it is given to the arbitrator.
Opening statements should be carefully thought out, and not be unduly argumentative, in order to accomplish their purpose to succinctly apprise the arbitrator of the party's theory of the case and what evidence that party intends to use to prove its case.
In a discipline case, the employer gives its opening statement first. In a contract interpretation case, the union gives its opening statement first. This is based on both tradition as well as which party has the burden of proof. If an advocate plans to ask for a burden of proof other than the preponderance of the evidence in their post-hearing argument, the advocate should consider giving the arbitrator notice of that in the opening statement.
To overcome the hurdle of the arbitrator’s lack of prior knowledge of the facts, the advocate must effectively promote the interests of their client, whether the employer or the union. The advocate should not overpromise and should remember that what is said during the opening statement is not evidence.
The Opening Statement describes the issues
The opening statement tells the arbitrator the issues in the case, including both the substantive and procedural issues. The opening statement must clearly inform the arbitrator of the applicable sections of the pertinent documents, including the collective bargaining agreement (CBA), employment manual, established policies, and other operative documents as well as the page numbers in the documents where those sections can be found. It is extremely important that the arbitrator know exactly where in these documents, including page numbers, the arbitrator can go to better understand the case and the parties’ viewpoints.
The advocate should pay attention to whether the arbitrator is taking notes during the opening statement. The pace with which the opening statement is delivered should be adjusted by paying careful attention to the arbitrator’s speed and depth of note taking. The advocate’s goal is to make the arbitrator’s job easier. Sometimes the pace at which the advocate delivers the opening statement, including pauses, can be helpful. The arbitrator’s hearing notes might ultimately be the record upon which the arbitrator’s memory of the hearing will largely be based.
The Opening Statement outlines the facts
The opening statement should, in a concise, clear fashion, outline the “who, what, where, how, and when” of the case. Once the opening statement is completed, the arbitrator should have a clear understanding of who the main actors are, what happened to give rise to the grievance, where the situation occurred, how the situation unfolded, and the timeline of the situation.
The opening statement should also address unfavorable aspects of the case. The arbitrator should not hear these unfavorable aspects for the first time during the other side’s opening statement. The advocate should use this opportunity to present adverse facts in the best light.
The second opening statement (for example, the union’s opening statement in a discipline case) should usually respond to issues raised in the first opening statement rather than waiting for the evidentiary portion of the hearing. For example, if the employer argues for the first time ever in its opening statement that the grievance or demand for arbitration is untimely, the union should tell the arbitrator, if true, during its opening statement that this issue was never previously raised by the employer. The arbitrator should be told about these procedural issues before the end of the opening statements. By careful planning of the opening statement, including the use of the grievance procedure, the advocate should anticipate the other side’s arguments and effectively respond to them.
The opening statement should be a careful, nonargumentative presentation of the case in a professional and courteous fashion. It will summarize in a convincing manner the advocate’s main arguments, including the facts and precisely what the advocate intends to prove.
The Opening statement specifies the relief sought
The opening statement should also spell out the relief that the party is seeking. If the arbitrator knows what remedy the party is seeking, it is easier for the arbitrator to understand the evidence as it comes in.
In discipline cases, the union will occasionally refrain from making its opening statement until after the employer offers its evidence and rests. Some believe this approach prevents the arbitrator from having a balanced or full understanding of the case at the start. On the other hand, others believe that the union advocate can better serve the interests of the grievant by not playing the advocate’s hand until after hearing all the employer’s evidence. Deciding to delay one’s opening is an important strategic decision that should not be made lightly. One risk of delaying one’s opening statement is that such delay might give the other side the advantage of the primacy effect. The rule of primacy means that the side heard first will be more persuasive than the side that is heard later. One possible benefit of delaying one’s opening is to hold back on one’s presentation until after the other side has played its cards.
The Opening Statement in a virtual hearing
In a virtual arbitration hearing via Zoom or other platform, the advocate must consider the different methods and characteristics of communication during a virtual arbitration. Depending on the settings of the observer’s monitor, the screen might display the advocate’s face on the entire screen. In addition, there might be a short delay between the advocate’s speaking and when the speaking is heard by the arbitrator. It is important that the advocate speak more slowly.
The advocate should also consider using Share Screen to help emphasize the relevant CBA provisions and other key documents. Share Screen is a tool available on the Zoom platform, which allows the user to share the user’s documents on the monitor to be seen by other participants in the hearing. As with other portions of the opening statement, the advocate should prepare and practice the Share Screen procedure ahead of time. The hearing is not the place to try Share Screen for the first time.
Pre-sharing of exhibits occurs much more frequently in virtual arbitration than in in-person arbitration. By using Share Screen, the arbitrator can see the relevant exhibit and the advocates at the same time. In addition, PowerPoint slides and exhibits can be displayed in the arbitration via Share Screen during the opening statement.
In all arbitrations, cooperation, professionalism, and mutual respect should be paramount. The mantra for virtual arbitrations is “be kind.”
Conclusion
An effective opening statement tells the arbitrator in a concise, courteous, fashion exactly what the facts in the case are, what the issues are, how the advocate wants the arbitrator to rule, and exactly what relief is being requested. In addition, with virtual arbitration, the advocate’s effective use of Share Screen during a Zoom arbitration can create a powerful opening statement.
____________________
Lee Hornberger is a member of the Professional Resolution Experts of Michigan, LLC (PREMi), an invitation-only group of Michigan’s top mediators, a member of the National Academy of Arbitrators, and a Diplomate Member of National Academy of Distinguished Neutrals. He is a former Chair of the Alternative Dispute Resolution Section of the State Bar of Michigan, Editor Emeritus of The Michigan Dispute Resolution Journal, a former member of the SBM’s Representative Assembly, a former President of the Grand Traverse-Leelanau-Antrim Bar Association, and a former Chair of the Traverse City Human Rights Commission. He is a Fellow of the American Bar Foundation and a Fellow of the SBM Foundation.He has received the Distinguished Service Award from the SBM ADR Section in recognition of significant contributions to the field of dispute resolution. He has received the George Bashara Award from the ADR Section in recognition of exemplary service. He has received the Hero of ADR Awards from the ADR Section. He is the Reviewing Editor of Chapters 8 and 10, Elkouri & Elkouri, “How Arbitration Works” (9th ed. 2026).
He is a Michigan Lawyers Weekly 2026 Michigan Legal 250 Honoree for Alternative Dispute Resolution. He is in Best Lawyers of America for arbitration and mediation. He has a First Tier ranking in Northern Michigan for Mediation by Best Law Firms and a Second Tier ranking in Northern Michigan for Arbitration by Best Law Firms. He is on the Michigan Super Lawyers list for alternative dispute resolution.
While serving with the U.S. Army in Vietnam, he was awarded the Bronze Star Medal and Army Commendation Medals. The unit he was in was awarded the Meritorious Unit Commendation and the Republic of Vietnam Gallantry Cross Unit Citation with Palm.
He holds his B.A. and J.D. cum laude from the University of Michigan and his LL.M. in Labor Law from Wayne State University.
Resolving Web3 conflicts: Integrating dispute resolution into decentralized systems
October 01 ,2026
In 2022, during the last crypto bear market, the crypto industry was already rocked by the closure of FTX, which was the third largest cryptocurrency exchange at the time. Now with Bitcoin down 60% off of its high, the crypto market is being rocked again.
:
Harshitha Ram and Eric Guthrie
In 2022, during the last crypto bear market, the crypto industry was already rocked by the closure of FTX, which was the third largest cryptocurrency exchange at the time. Now with Bitcoin down 60% off of its high, the crypto market is being rocked again.
According to Weex.com Crypto News, four crypto platforms have scheduled their closures within 30 days. These platforms include: BitMart, BitMEX, AscendEX, EXMO.com. While these examples specifically involve cryptocurrencies and cryptocurrency exchanges, as discussed in this article, the scope of dispute resolution has a broader breadth and involves the comprehensive analysis of the Web3 economy.
The new digital economy built on Web3
Web3 is already powering a rapidly expanding digital economy that extends far beyond cryptocurrencies. Blockchain technology underpins digital currencies, decentralized finance (DeFi) platforms that facilitate lending and borrowing without traditional financial institutions, non-fungible tokens (NFTs) that represent ownership of digital and physical assets, decentralized autonomous organizations (DAOs) that enable community governance, tokenized real-world assets, decentralized marketplaces, blockchain gaming ecosystems, and increasingly sophisticated smart contracts capable of executing agreements automatically once predefined conditions are satisfied.
Major financial institutions, such as JPMorgan, BlackRock and Goldman are exploring tokenized securities. Fortune 50 Companies including Walmart and Coca-Cola are utilizing blockchain for transparency and traceability in their global supply chains.
Governments are evaluating digital identity initiatives and businesses across industries are experimenting with tokenization as a means of representing ownership interests in everything from real estate to fine art. Collectively, these innovations represent more than technological advancement—they signal the emergence of an entirely new commercial ecosystem. However, every mature marketplace requires more than an efficient transaction layer. It also requires a trusted mechanism for resolving disagreements when transactions do not unfold as expected.
Every new economy creates new disputes
The evolution of commerce has always been accompanied by the evolution of conflict. International trade gave rise to commercial arbitration. Electronic commerce required new approaches to cybersecurity and digital contracting. Web3 is no different.
Although blockchain introduces novel technologies, the underlying disputes remain remarkably familiar: parties disagree about ownership, performance, governance, fraud, interpretation, and responsibility.
The difference is that these disagreements now arise within decentralized ecosystems that frequently transcend national borders. As experienced attorneys in this area, we have found the most common categories of Web3 disputes include:
• Familiar disputes in a new digital setting
Web3 disputes may sound highly technical, but many resemble problems people already understand. A smart contract dispute is much like an automatic payment going through even though the underlying deal has changed.
A digital asset dispute may be as simple as asking who owns money taken from a wallet without permission.
A DeFi dispute can resemble a disagreement with a bank over a loan, investment loss, or improper liquidation—except there may be no traditional bank involved.
A DAO governance dispute is similar to a shareholder fight over voting, control, or use of company funds.
An NFT dispute may arise when someone buys a digital image but later discovers that the purchase did not include the copyright. And in cross-border transactions, the first question may be the most basic one: Which country’s law applies, and where should the dispute be heard?
In other words, Web3 does not create entirely new human conflicts. It places familiar disputes—over contracts, money, ownership, governance, and fairness—into a faster, borderless, and more technologically complex environment.
• Cross-border jurisdictional challenges
A single blockchain transaction may involve parties located across multiple continents, utilizing decentralized infrastructure distributed globally.
Questions concerning governing law, jurisdiction, applicable regulations, and enforcement frequently become as significant as the substantive dispute itself.
These examples demonstrate an important reality: Web3 disputes are rarely confined to technology alone. They involve traditional legal principles applied within entirely new technological environments.
Why traditional litigation is inadequate
Traditional litigation was designed for disputes involving identifiable parties, defined jurisdictions, and tangible assets. Web3 challenges each of these assumptions. Transactions occur across decentralized networks, parties may remain pseudonymous, digital assets move across borders in seconds, and the applicable law is often uncertain. As a result, conventional court proceedings can be slow, costly, and ill-suited to the pace and global nature of decentralized commerce. Jurisdictional disputes, public proceedings, and the need for specialized technical expertise further complicate litigation. As Web3 continues to evolve beyond national boundaries, so too must the mechanisms for resolving its disputes.
ADR: The often-overlooked solution
ADR works best in Web3 when it is designed into the transaction from the outset. The goal is simple: do not wait until assets are frozen, code has failed, or participants are scattered across several countries to decide how a dispute will be resolved. Web3 businesses should adopt a clear, layered process—begin with direct negotiation, move to mediation for commercial resolution, use expert determination for narrow technical questions, and reserve arbitration for disputes requiring a binding and internationally enforceable outcome.
The dispute resolution clause should identify the governing law, seat of arbitration, administering institution, language, number of arbitrators, and method for selecting neutrals with relevant digital asset expertise. It should also address emergency relief, preservation of wallet records and blockchain evidence, confidentiality, notice through verified digital channels, and the treatment of pseudonymous parties. DAO rules and platform terms should explain who may bring a claim, who represents the community or protocol, and how any settlement or award will be implemented.
A practical Web3 dispute-resolution model may therefore look like this: rapid notice and negotiation; expedited mediation; technical issues referred to an independent expert; and, if necessary, streamlined arbitration with emergency procedures and enforceable relief. For lower-value disputes, an online, documents-only process can reduce cost and delay. For high-value or cross-border disputes, institutional arbitration can provide procedural structure, specialist decision-makers, and enforceability. The key is to treat dispute resolution as part of the product, not as legal language added at the end. A Web3 project that plans for conflict is not expecting failure—it is demonstrating sound governance. Build the transaction, build the technology, and build the path to resolution at the same time.
Looking beyond smart contracts
Web3 has fundamentally changed how we transact, with smart contracts, tokenization, and decentralized platforms transforming commerce at an unprecedented pace.
Yet technology alone cannot resolve the human realities of business trust, fairness, judgment, and disagreement. Every successful marketplace requires not only an efficient way to transact, but also a trusted way to resolve disputes when transactions fail. The next evolution of Web3, therefore, is not simply about building smarter contracts; it is about embedding smarter dispute resolution into its very foundation.
Projects that integrate negotiation, mediation, arbitration, and sound governance from the outset will inspire greater confidence, attract investment, and stand the test of time.
Blockchain may power the transaction, but ADR powers the trust. And in the digital economy, trust will always be the most valuable asset.
According to Weex.com Crypto News, four crypto platforms have scheduled their closures within 30 days. These platforms include: BitMart, BitMEX, AscendEX, EXMO.com. While these examples specifically involve cryptocurrencies and cryptocurrency exchanges, as discussed in this article, the scope of dispute resolution has a broader breadth and involves the comprehensive analysis of the Web3 economy.
The new digital economy built on Web3
Web3 is already powering a rapidly expanding digital economy that extends far beyond cryptocurrencies. Blockchain technology underpins digital currencies, decentralized finance (DeFi) platforms that facilitate lending and borrowing without traditional financial institutions, non-fungible tokens (NFTs) that represent ownership of digital and physical assets, decentralized autonomous organizations (DAOs) that enable community governance, tokenized real-world assets, decentralized marketplaces, blockchain gaming ecosystems, and increasingly sophisticated smart contracts capable of executing agreements automatically once predefined conditions are satisfied.
Major financial institutions, such as JPMorgan, BlackRock and Goldman are exploring tokenized securities. Fortune 50 Companies including Walmart and Coca-Cola are utilizing blockchain for transparency and traceability in their global supply chains.
Governments are evaluating digital identity initiatives and businesses across industries are experimenting with tokenization as a means of representing ownership interests in everything from real estate to fine art. Collectively, these innovations represent more than technological advancement—they signal the emergence of an entirely new commercial ecosystem. However, every mature marketplace requires more than an efficient transaction layer. It also requires a trusted mechanism for resolving disagreements when transactions do not unfold as expected.
Every new economy creates new disputes
The evolution of commerce has always been accompanied by the evolution of conflict. International trade gave rise to commercial arbitration. Electronic commerce required new approaches to cybersecurity and digital contracting. Web3 is no different.
Although blockchain introduces novel technologies, the underlying disputes remain remarkably familiar: parties disagree about ownership, performance, governance, fraud, interpretation, and responsibility.
The difference is that these disagreements now arise within decentralized ecosystems that frequently transcend national borders. As experienced attorneys in this area, we have found the most common categories of Web3 disputes include:
• Familiar disputes in a new digital setting
Web3 disputes may sound highly technical, but many resemble problems people already understand. A smart contract dispute is much like an automatic payment going through even though the underlying deal has changed.
A digital asset dispute may be as simple as asking who owns money taken from a wallet without permission.
A DeFi dispute can resemble a disagreement with a bank over a loan, investment loss, or improper liquidation—except there may be no traditional bank involved.
A DAO governance dispute is similar to a shareholder fight over voting, control, or use of company funds.
An NFT dispute may arise when someone buys a digital image but later discovers that the purchase did not include the copyright. And in cross-border transactions, the first question may be the most basic one: Which country’s law applies, and where should the dispute be heard?
In other words, Web3 does not create entirely new human conflicts. It places familiar disputes—over contracts, money, ownership, governance, and fairness—into a faster, borderless, and more technologically complex environment.
• Cross-border jurisdictional challenges
A single blockchain transaction may involve parties located across multiple continents, utilizing decentralized infrastructure distributed globally.
Questions concerning governing law, jurisdiction, applicable regulations, and enforcement frequently become as significant as the substantive dispute itself.
These examples demonstrate an important reality: Web3 disputes are rarely confined to technology alone. They involve traditional legal principles applied within entirely new technological environments.
Why traditional litigation is inadequate
Traditional litigation was designed for disputes involving identifiable parties, defined jurisdictions, and tangible assets. Web3 challenges each of these assumptions. Transactions occur across decentralized networks, parties may remain pseudonymous, digital assets move across borders in seconds, and the applicable law is often uncertain. As a result, conventional court proceedings can be slow, costly, and ill-suited to the pace and global nature of decentralized commerce. Jurisdictional disputes, public proceedings, and the need for specialized technical expertise further complicate litigation. As Web3 continues to evolve beyond national boundaries, so too must the mechanisms for resolving its disputes.
ADR: The often-overlooked solution
ADR works best in Web3 when it is designed into the transaction from the outset. The goal is simple: do not wait until assets are frozen, code has failed, or participants are scattered across several countries to decide how a dispute will be resolved. Web3 businesses should adopt a clear, layered process—begin with direct negotiation, move to mediation for commercial resolution, use expert determination for narrow technical questions, and reserve arbitration for disputes requiring a binding and internationally enforceable outcome.
The dispute resolution clause should identify the governing law, seat of arbitration, administering institution, language, number of arbitrators, and method for selecting neutrals with relevant digital asset expertise. It should also address emergency relief, preservation of wallet records and blockchain evidence, confidentiality, notice through verified digital channels, and the treatment of pseudonymous parties. DAO rules and platform terms should explain who may bring a claim, who represents the community or protocol, and how any settlement or award will be implemented.
A practical Web3 dispute-resolution model may therefore look like this: rapid notice and negotiation; expedited mediation; technical issues referred to an independent expert; and, if necessary, streamlined arbitration with emergency procedures and enforceable relief. For lower-value disputes, an online, documents-only process can reduce cost and delay. For high-value or cross-border disputes, institutional arbitration can provide procedural structure, specialist decision-makers, and enforceability. The key is to treat dispute resolution as part of the product, not as legal language added at the end. A Web3 project that plans for conflict is not expecting failure—it is demonstrating sound governance. Build the transaction, build the technology, and build the path to resolution at the same time.
Looking beyond smart contracts
Web3 has fundamentally changed how we transact, with smart contracts, tokenization, and decentralized platforms transforming commerce at an unprecedented pace.
Yet technology alone cannot resolve the human realities of business trust, fairness, judgment, and disagreement. Every successful marketplace requires not only an efficient way to transact, but also a trusted way to resolve disputes when transactions fail. The next evolution of Web3, therefore, is not simply about building smarter contracts; it is about embedding smarter dispute resolution into its very foundation.
Projects that integrate negotiation, mediation, arbitration, and sound governance from the outset will inspire greater confidence, attract investment, and stand the test of time.
Blockchain may power the transaction, but ADR powers the trust. And in the digital economy, trust will always be the most valuable asset.
Special considerations in mediating probate disputes
September 17 ,2026
The use of facilitative mediation in Probate disputes is now widespread throughout the State of Michigan. Probate cases have many special characteristics and intricacies that set them apart from typical disputes.
:
Hon. John A. Hohman (Ret)
The use of facilitative mediation in Probate disputes is now widespread throughout the State of Michigan. Probate cases have many special characteristics and intricacies that set them apart from typical disputes. This article identifies those special characteristics and provides advice on how to address them in the mediation process.
Family Dynamics:
Most probate disputes involve members of the same family. Typically, the participants have known one another for 40-70 years. They grew up together, shared bathrooms and back seats of the station wagon together. Their resentments toward one another have been percolating for decades. They recently endured the stresses of caring for a dying parent together. They bring jealousy, anger and distrust into the mediation session. The resentments and distrust impede effective communication and are barriers to open-mindedness. The attorneys and the mediator should be on the watch for the family dynamics in play, and take measures to negate the negative influences and irrational thoughts that are obstacles to effective discussions. As an attorney, if you are aware of your client’s acute resentments, you should advise your mediator of that problem in advance of the session.
Guardianships and Conservatorships:
These are the most difficult cases to mediate, for a number of reasons. The topic is worth its own article. The primary problem is that the person over whom a guardianship or conservatorship is sought may not have the requisite capacity to participate in the mediation process. Often, I have helped to facilitate an agreement between a parent and his/her children, and the parent will renege on the agreement the next day, or when the agreement is presented to the court. It should also be noted that a person cannot be deemed to be in need of a guardian or conservator except through a specific court order. The court must conduct a hearing and make specific findings of fact, prior to such a determination. While the mediation process can grease the skids for that hearing, it cannot independently create the solution.
Best Day/Worst Day Analysis:
Quite often, a probate dispute will center around the validity of a testamentary document. A testamentary document will either be found to be valid or invalid. This determination leaves the parties with an identifiable amount at stake. Assuming that the approximate value of the estate is known, it’s relatively easy to determine the “best day” vs the “worst day” for each participant, should the dispute proceed to court. In most other types of cases (personal injury, malpractice, divorce, etc.), the potential outcomes are not so clear. The presence of an identifiable range of outcomes in a probate mediation helps the participants to better understand their choices. I had a case a couple of years ago where two brothers in their twenties would recover $200,000 if they won their case, and $0 if they lost. After a few hours of mediation in a Troy conference room, their step-mother finally offered to pay them $100,000 to settle the case. The case had a 50-50 probability of success, in my opinion. The youngsters told me that they wished to reject their step-mother’s proposal. I reframed the question. I handed them a 3 x 5 piece of paper and said, “Here is $100,000. Would you take this $100,000 down to the casino in Detroit and place it on a 50-50 bet? You win and you walk away with $200,000. You lose and you walk away with nothing.” And then I reminded them that their attorney would drive them to the casino, but the cost of the ride would be about $40,000, win or lose. The boys quickly understood the ramifications of their decision and agreed to settle for $100,000.
Disguised Greed and Self-righteousness:
Greed and self-righteousness are present in all disputes, but it takes a different form in a probate proceeding. It is easily disguised as the efforts of the “only person here who understood what Dad really wanted.” I often have heard a participant state “I am only trying to honor my father’s wishes” [at least those I was able to unduly influence him into making]. That prompts me to ask if their father’s wish was for his children to wage a three-day battle in a public court room where all of his medical records concerning his dementia would be made public, because that is the outcome if the case does not settle at mediation.
Practical Considerations
Scheduling the Mediation Session:
Most probate mediations have multiple participants. It is not uncommon to have four or more participants (with four or more attorneys) involved in a probate proceeding. This creates scheduling issues. Be considerate of your opposing counsel when scheduling efforts are on-going. Answer emails promptly, or designate a person in your office to work on scheduling. It’s frustrating to wait more than a day to get an answer from someone. It impacts the entire group working on the case. If you reply two or three days after the original scheduling email goes out, it is likely that some of the dates originally proposed will no longer be available.
Payment of the Mediator Fee:
MCR 2.411(D)(2) states that “The costs of mediation shall be divided between the parties on a pro-rata basis unless otherwise agreed by the parties or ordered by the court.” Attorneys frequently cite this rule in disputes about payment of the mediator fee.
I do not believe that the rule applies to the typical probate proceeding. First, a probate proceeding does not have “parties.” A person participating in a probate proceeding is called an “interested person.” Second, there are typically multiple “interested persons” in a probate proceeding, some of whom have no interest in the mediation. If a charity or heir is not impacted by the court’s determination on the ultimate question, should that charity be required to pay the mediator fee on a “pro-rata basis?”
Finally, even if the fee is limited to those participating, should it be divided among the number of “sides” or the number of participants? Sometimes one child is challenging a will. That child may be opposed by four siblings. Should that child pay one fifth or one half of the mediator fee? I strongly encourage attorneys to get the court’s specific decision on payment of the mediator fee when mediation is originally ordered. The court should identify who is participating in the mediation, and what percentage each interested person will be obligated to pay. I also encourage attorneys to consider whether the estate or trust should pay 100% of the mediator fee. This solution removes costly discussion and argument over an issue that is relatively insignificant, dollar-wise, in the ultimate resolution.
Notice of the Mediation:
Each interested person whose rights may be affected by the outcome of the mediation should be provided notice of the mediation session, even if they have not appeared in the case.
Failure to do so may invalidate a hard-earned settlement agreement.
The Michigan Attorney General must be notified when a charity is involved.
Mediation in probate proceedings saves money, provides certainty sooner, and allows the parties to compromise in a way that cannot be accomplished through a decision of the court. It also allows delicate family problems to be solved in a private, confidential setting, rather than a public court room. Those who mediate probate proceedings should be aware of the intricacies of that process, and be prepared to address them as they arise.
John Hohman served as a Probate Judge for 17 years. He left the bench in 2013 to become the State Court Administrator. He has served as a mediator and arbitrator since 2015. He has mediated or arbitrated cases in 45 counties throughout the State of Michigan. His primary focus is probate mediation, but he also serves as a mediator and arbitrator in civil and domestic cases.
Reprinted with permission from the WCBA periodical Res Ipsa Loquitur.
Family Dynamics:
Most probate disputes involve members of the same family. Typically, the participants have known one another for 40-70 years. They grew up together, shared bathrooms and back seats of the station wagon together. Their resentments toward one another have been percolating for decades. They recently endured the stresses of caring for a dying parent together. They bring jealousy, anger and distrust into the mediation session. The resentments and distrust impede effective communication and are barriers to open-mindedness. The attorneys and the mediator should be on the watch for the family dynamics in play, and take measures to negate the negative influences and irrational thoughts that are obstacles to effective discussions. As an attorney, if you are aware of your client’s acute resentments, you should advise your mediator of that problem in advance of the session.
Guardianships and Conservatorships:
These are the most difficult cases to mediate, for a number of reasons. The topic is worth its own article. The primary problem is that the person over whom a guardianship or conservatorship is sought may not have the requisite capacity to participate in the mediation process. Often, I have helped to facilitate an agreement between a parent and his/her children, and the parent will renege on the agreement the next day, or when the agreement is presented to the court. It should also be noted that a person cannot be deemed to be in need of a guardian or conservator except through a specific court order. The court must conduct a hearing and make specific findings of fact, prior to such a determination. While the mediation process can grease the skids for that hearing, it cannot independently create the solution.
Best Day/Worst Day Analysis:
Quite often, a probate dispute will center around the validity of a testamentary document. A testamentary document will either be found to be valid or invalid. This determination leaves the parties with an identifiable amount at stake. Assuming that the approximate value of the estate is known, it’s relatively easy to determine the “best day” vs the “worst day” for each participant, should the dispute proceed to court. In most other types of cases (personal injury, malpractice, divorce, etc.), the potential outcomes are not so clear. The presence of an identifiable range of outcomes in a probate mediation helps the participants to better understand their choices. I had a case a couple of years ago where two brothers in their twenties would recover $200,000 if they won their case, and $0 if they lost. After a few hours of mediation in a Troy conference room, their step-mother finally offered to pay them $100,000 to settle the case. The case had a 50-50 probability of success, in my opinion. The youngsters told me that they wished to reject their step-mother’s proposal. I reframed the question. I handed them a 3 x 5 piece of paper and said, “Here is $100,000. Would you take this $100,000 down to the casino in Detroit and place it on a 50-50 bet? You win and you walk away with $200,000. You lose and you walk away with nothing.” And then I reminded them that their attorney would drive them to the casino, but the cost of the ride would be about $40,000, win or lose. The boys quickly understood the ramifications of their decision and agreed to settle for $100,000.
Disguised Greed and Self-righteousness:
Greed and self-righteousness are present in all disputes, but it takes a different form in a probate proceeding. It is easily disguised as the efforts of the “only person here who understood what Dad really wanted.” I often have heard a participant state “I am only trying to honor my father’s wishes” [at least those I was able to unduly influence him into making]. That prompts me to ask if their father’s wish was for his children to wage a three-day battle in a public court room where all of his medical records concerning his dementia would be made public, because that is the outcome if the case does not settle at mediation.
Practical Considerations
Scheduling the Mediation Session:
Most probate mediations have multiple participants. It is not uncommon to have four or more participants (with four or more attorneys) involved in a probate proceeding. This creates scheduling issues. Be considerate of your opposing counsel when scheduling efforts are on-going. Answer emails promptly, or designate a person in your office to work on scheduling. It’s frustrating to wait more than a day to get an answer from someone. It impacts the entire group working on the case. If you reply two or three days after the original scheduling email goes out, it is likely that some of the dates originally proposed will no longer be available.
Payment of the Mediator Fee:
MCR 2.411(D)(2) states that “The costs of mediation shall be divided between the parties on a pro-rata basis unless otherwise agreed by the parties or ordered by the court.” Attorneys frequently cite this rule in disputes about payment of the mediator fee.
I do not believe that the rule applies to the typical probate proceeding. First, a probate proceeding does not have “parties.” A person participating in a probate proceeding is called an “interested person.” Second, there are typically multiple “interested persons” in a probate proceeding, some of whom have no interest in the mediation. If a charity or heir is not impacted by the court’s determination on the ultimate question, should that charity be required to pay the mediator fee on a “pro-rata basis?”
Finally, even if the fee is limited to those participating, should it be divided among the number of “sides” or the number of participants? Sometimes one child is challenging a will. That child may be opposed by four siblings. Should that child pay one fifth or one half of the mediator fee? I strongly encourage attorneys to get the court’s specific decision on payment of the mediator fee when mediation is originally ordered. The court should identify who is participating in the mediation, and what percentage each interested person will be obligated to pay. I also encourage attorneys to consider whether the estate or trust should pay 100% of the mediator fee. This solution removes costly discussion and argument over an issue that is relatively insignificant, dollar-wise, in the ultimate resolution.
Notice of the Mediation:
Each interested person whose rights may be affected by the outcome of the mediation should be provided notice of the mediation session, even if they have not appeared in the case.
Failure to do so may invalidate a hard-earned settlement agreement.
The Michigan Attorney General must be notified when a charity is involved.
Mediation in probate proceedings saves money, provides certainty sooner, and allows the parties to compromise in a way that cannot be accomplished through a decision of the court. It also allows delicate family problems to be solved in a private, confidential setting, rather than a public court room. Those who mediate probate proceedings should be aware of the intricacies of that process, and be prepared to address them as they arise.
John Hohman served as a Probate Judge for 17 years. He left the bench in 2013 to become the State Court Administrator. He has served as a mediator and arbitrator since 2015. He has mediated or arbitrated cases in 45 counties throughout the State of Michigan. His primary focus is probate mediation, but he also serves as a mediator and arbitrator in civil and domestic cases.
Reprinted with permission from the WCBA periodical Res Ipsa Loquitur.
?Michigan legislators consider a variety of proposals, many bad, on data centers
September 10 ,2026
Data centers are on a lot of people’s minds, with concerns typically involving the amount of water, electricity and land they use. A related concern has to do with concerns about a technology data centers enable, notably, artificial intelligence.
:
By Jarrett Skorup
Mackinac Center for Public Policy
Data centers are on a lot of people’s minds, with concerns typically involving the amount of water, electricity and land they use. A related concern has to do with concerns about a technology data centers enable, notably, artificial intelligence.
A recent panel from the Mackinac Center looked at the trade-offs involved in data centers. People often underestimate the positives that data centers contribute to technologies in medicine, manufacturing and other economic sectors. It’s also easy to overlook the economic activity and revenue from the data centers themselves, as well as from the companies they support.
Many concerns are overblown. A typical data center uses less water than a golf course, and new designs allow much of that to be recycled. Michigan has a lot of water, and strong laws ensure its use is sustainable.
Data centers use a lot of energy, but not as much as big companies in Michigan that few people would dream of shutting down.
And electricity is not a zero-sum game, where one business or person using it means less for everyone else. Adding new companies to the electricity grid can be good for everyone when it spreads fixed costs over a wider customer base.
Though all this is true, many voters are skeptical of data centers, and lawmakers respond to their constituents. Some legislative proposals would shut down or severely hinder this new technology and the economic growth, jobs and revenue it could bring. Others would treat data centers differently than businesses that have similar patterns for using water or electricity. And a few bills would regulate data center construction to favor labor unions.
These are bad ideas. Michigan lawmakers should regulate all companies the same when it comes to how they use land, water and energy. The state should not push unionized labor or use the tax code to pick favorites. Citizens and legislators should make Michigan a welcoming state for industry and flatten the playing field as much as possible.
Members of the Michigan Legislature have created various proposals to regulate data centers. Here they are, as summarized by Michigan Votes.
• Senate Bill 1018 imposes a temporary moratorium on the approval and operation of data centers in Michigan until April 1, 2027.
• Senate Bill 1019 amends Michigan’s zoning laws to include the Data Center Regulation Act, reinforces limits on local regulation of resource extraction and energy projects, and protects certain renewable energy projects from retroactive zoning changes.
• Senate Bill 1020 temporarily prohibits the Michigan Public Service Commission from approving any electric utility agreements with data centers until April 1, 2027.
• House Bill 5777 establishes a regulatory framework for large-scale data centers in Michigan, requiring registration, financial security, environmental and operational reporting, prevailing wage for construction, and creating a fund to reimburse local governments for costs related to data center impacts.
• House Bill 5786 sets labor hiring priorities, apprenticeship requirements, and compliance documentation standards for enterprise data center construction contracts in Michigan, with enforcement mechanisms and tax incentive implications.
• House Bill 5787 amends Michigan’s sales tax law to expand and regulate tax exemptions for data center equipment, tying eligibility to job creation, green building, clean energy use, and compliance with labor standards, while establishing new certification, reporting, and accountability requirements for enterprise data centers.
• House Bill 5882 creates a structured process for Michigan local governments to temporarily pause and evaluate large-scale data center and cryptocurrency mining projects, requiring public input, impact studies, and transparency, while preserving existing legal and labor protections.
• House Bill 5881 amends Michigan’s zoning law to require local ordinances to comply with the Data Center Planning and Responsibility Act, and clarifies limits on local regulation of resource extraction and renewable energy projects.
• House Bill 5882 creates a structured process for Michigan local governments to temporarily pause and evaluate large-scale data center and cryptocurrency mining projects, requiring public input, impact studies, and transparency, while preserving existing legal and labor protections.
• House Bill 5982 requires contested case review and final approval by the Michigan Public Service Commission for any utility agreements offering preferential rates to large-load data centers, enhancing procedural oversight without altering substantive ratemaking standards.
____________________
Jarrett Skorup is the vice president for marketing and communications at the Mackinac Center for Public Policy. Michigan legislators consider a variety of proposals, many bad, on data centers
Data centers are on a lot of people’s minds, with concerns typically involving the amount of water, electricity and land they use. A related concern has to do with concerns about a technology data centers enable, notably, artificial intelligence.
A recent panel from the Mackinac Center looked at the trade-offs involved in data centers. People often underestimate the positives that data centers contribute to technologies in medicine, manufacturing and other economic sectors. It’s also easy to overlook the economic activity and revenue from the data centers themselves, as well as from the companies they support.
Many concerns are overblown. A typical data center uses less water than a golf course, and new designs allow much of that to be recycled. Michigan has a lot of water, and strong laws ensure its use is sustainable.
Data centers use a lot of energy, but not as much as big companies in Michigan that few people would dream of shutting down.
And electricity is not a zero-sum game, where one business or person using it means less for everyone else. Adding new companies to the electricity grid can be good for everyone when it spreads fixed costs over a wider customer base.
Though all this is true, many voters are skeptical of data centers, and lawmakers respond to their constituents. Some legislative proposals would shut down or severely hinder this new technology and the economic growth, jobs and revenue it could bring. Others would treat data centers differently than businesses that have similar patterns for using water or electricity. And a few bills would regulate data center construction to favor labor unions.
These are bad ideas. Michigan lawmakers should regulate all companies the same when it comes to how they use land, water and energy. The state should not push unionized labor or use the tax code to pick favorites. Citizens and legislators should make Michigan a welcoming state for industry and flatten the playing field as much as possible.
Members of the Michigan Legislature have created various proposals to regulate data centers. Here they are, as summarized by Michigan Votes.
• Senate Bill 1018 imposes a temporary moratorium on the approval and operation of data centers in Michigan until April 1, 2027.
• Senate Bill 1019 amends Michigan’s zoning laws to include the Data Center Regulation Act, reinforces limits on local regulation of resource extraction and energy projects, and protects certain renewable energy projects from retroactive zoning changes.
• Senate Bill 1020 temporarily prohibits the Michigan Public Service Commission from approving any electric utility agreements with data centers until April 1, 2027.
• House Bill 5777 establishes a regulatory framework for large-scale data centers in Michigan, requiring registration, financial security, environmental and operational reporting, prevailing wage for construction, and creating a fund to reimburse local governments for costs related to data center impacts.
• House Bill 5786 sets labor hiring priorities, apprenticeship requirements, and compliance documentation standards for enterprise data center construction contracts in Michigan, with enforcement mechanisms and tax incentive implications.
• House Bill 5787 amends Michigan’s sales tax law to expand and regulate tax exemptions for data center equipment, tying eligibility to job creation, green building, clean energy use, and compliance with labor standards, while establishing new certification, reporting, and accountability requirements for enterprise data centers.
• House Bill 5882 creates a structured process for Michigan local governments to temporarily pause and evaluate large-scale data center and cryptocurrency mining projects, requiring public input, impact studies, and transparency, while preserving existing legal and labor protections.
• House Bill 5881 amends Michigan’s zoning law to require local ordinances to comply with the Data Center Planning and Responsibility Act, and clarifies limits on local regulation of resource extraction and renewable energy projects.
• House Bill 5882 creates a structured process for Michigan local governments to temporarily pause and evaluate large-scale data center and cryptocurrency mining projects, requiring public input, impact studies, and transparency, while preserving existing legal and labor protections.
• House Bill 5982 requires contested case review and final approval by the Michigan Public Service Commission for any utility agreements offering preferential rates to large-load data centers, enhancing procedural oversight without altering substantive ratemaking standards.
____________________
Jarrett Skorup is the vice president for marketing and communications at the Mackinac Center for Public Policy. Michigan legislators consider a variety of proposals, many bad, on data centers
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