Admin no. - 2005-05, 2006-20
Proposed - November 25, 2008
Adopted - 4-5-11
Effective - 9-1-11
Note: This item to be updated in the near future
This proposed amendment affects the rules governing the case evaluation and the mediation process. A significant number of amendments are proposed. These proposals are wide-ranging; a few of them are significant and should be carefully examined by any Michigan trial lawyer. See, in particular, the items marked 5, 7, 8, and 10 below.
1. Exception of cases - For cases in which case evaluation is ordinarily required, the amendment removes the language regarding the power of the court to exempt a case from the case evaluation process from the primary subsection, and moves it to a new subsection (2). The current version allows the trial court to exempt a case from case evaluation "on motion for good cause shown". The proposed amendment would allow (but not require) the court to exempt "all or part" of a case
- on motion for good cause shown
- on stipulation of the parties for good cause shown
- by the court with the consent of the parties
The third of these seems to anticipate a sua sponte suggestion by the court to exempt "all or part" of a case, but this would require the consent of all parties.
The provisions of subsection (M), governing the effect of acceptance or rejection, are to be amended to accommodate these changes.
Note: The suggestion that part of a case could be exempted and part submitted to case evaluation is new.
2. The 91-day time period is removed. Currently, the trial court (or the chief judge) may designate a case as one for which case evaluation is proper after 91 days have elapsed. The proposal would remove that time limit.
Note: This modification will have little practical effect on most cases.
3. Fees for members of the panel are increased to $50 (except for judges) and the automatic 14-day time for submission of fees would be removed and replaced by a provision that would authorize the trial court to determine when payment should be made. Fees may be paid as the court directs.
Notes: Any increase in case evaluation fees is welcome. It would be helpful for trial courts to include a provision that the fees are to be paid a month before the case evaluation date.
4. The section permitting the plaintiff to elect to treat injuries to multiple members of a single family as one claim, with one fee paid, is to be removed.
Note: This would require multiple fees and multiple evaluations for all cases involving such claims.
5. Subsection 5, to be renumbered as subsection 4, governs the refunding of case evaluation fees. The rule would be tightened to provide that
- If the hearing is adjourned with a new date, the order for the adjournment may provide that the fees already paid will apply to the new hearing
- If the motion is made and granted within 14 days of the date set, the fees should not be refunded, unless the court otherwise orders "for good cause".
6. Subsection (I)(1), regarding filing of summaries, would be amended.
Note: This is a simple revision of rule language, with little to no substantive change to be affected.
7. Subsection (I)(2) would be amended to provide for the $150 penalty for the filing of each supplement to the original filing. The current rule provides for such a penalty only for failure to file any summary.
Note: This could be an onerous imposition in many factual situations. When a supplemental filing is necessary due to the late receipt of discovery, including deposition transcripts, a party who wishes to supplement his summary should not be penalized.
8. Summaries would be limited to 20 pages (excluding exhibits), and typeface requirement similar to those governing appellate briefs would be imposed.
Note: Unlike court filings, it is hard to see why a page limit should be imposed on case evaluation filings.
9. The provisions of subsection (M) would be modified to ensure that an acceptance in a first-party no-fault case would not affect any benefits accruing after the date of the case evaluation hearing. There are two alternative proposals in this area. One would cover all cases, while the other would be limited to claims for first-party PIP benefits.
10. The trial court may order a second case evaluation, or other ADR procedure, if the first results in a non-unanimous evaluation.
Note: The proposal is silent as to how this would affect interim offers of judgment.
11. Rule 2.411 would be amended to prohibit the trial court from recommending or influencing a party's selection of a mediator, unless stipulated by all parties on the record.
12. The Rule would also be amended to remove the reference to an hourly rate.
Note: This will not affect very many facilitated mediations. It will open the door to allow some mediators to charge a flat fee.
13. The Rule would be amended to allow a Community Dispute Resolution program to appear on a roster of mediators, if certain requirements are met.
14. The application provisions would permit an applicant to attach a resume or biographical information.
There are also proposed changes to Rule 3.216, involving mediation of domestic relations cases, that will be of interest to those who practice in that area.
Notes:
The staff comment says that these proposals are based on changes recommended by the Dispute Resolution Rules Committee convened by the State Court Administrative Office. The committee’s report can be found at http://courts.michigan.gov/scao/resources/publications/reports/DRRCReport2008.pdf.
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