Selecting a Mediator in Property Lawsuits
If you have filed a lawsuit in a Circuit Court in Michigan, you will very likely be sent to facilitative mediation. What’s that? And should you choose a mediator who has experience with property law? This article has answers.
What is mediation in a lawsuit in Michigan? Most property lawsuits are filed in a county circuit court. These courts have, almost uniformly, adopted a policy that all civil suits should be sent to mediation under a process outlined in the Michigan Court Rules. If you file a property lawsuit, or are a defendant in a suit, you’ll be headed to mediation.
The mediation process begins with the parties, through their attorneys, selecting a mediator. A mediator does not make rulings or decisions about the case and does not report back to the judge what he or she thinks about the case. Instead, the mediator’s job is to work with the parties to facilitate discussions, the exchange of information, and offers of settlement which hopefully lead to a settlement agreement that will conclude the lawsuit.
A question that arises is whether the mediator should have expertise in the subject matter of the mediation. Because the mediator’s job is to prompt the parties to discuss issues, examine the strengths and weaknesses of their case, and potential outcomes with or without a settlement, one view is that the mediator does not need to have any expertise in the legal issues present in the case. And given the choice, I would certainly choose a skilled mediator who lacked that expertise over a mediocre or poor mediator who did have expertise in the subject matter. However, I do believe there is merit in considering a mediator in property law cases who has experience with property law.
A mediator with property law experience can offer four benefits in those cases: Efficiency, evaluation, empathy, and settlement proposal advice.
· Efficiency. Most mediators require the attorneys to submit summaries of the cases, and almost all mediations begin with the parties informing the mediator of the facts and legal issues in the case. It is time consuming to explain a property law case to an attorney who may not have a grasp of the issues.
· Evaluation. Mediation is usually the only circumstance where a party can have an outside attorney evaluate their case. Most mediators do this not by inserting their own opinion, but by asking questions designed to get the parties assessing the strengths and weaknesses present. This is a very valuable process, and it is usually best accomplished by a mediator with experience in litigating property law cases.
· Empathy. Believe it or not, a mediator’s best skill is listening. Mediation is often the first, and sometimes the only, process where a plaintiff or defendant gets to tell their story and be heard. This is important—I believe most people won’t make a decision about settling their case until they believe they have been understood. After assisting hundreds of clients with property law disputes, I’ve gained an understanding that property issues often bring out a lot of emotions. That is understandable, and having a mediator who can empathize with those emotions and help you process them is valuable.
· Settlement Proposal Advice. One thing I like about property law disputes is that there are many ways to reach a settlement—it’s not just one side paying the other. And even when the general idea of a settlement is reached, often there are various legal methods to achieve that goal. When I am settling a property law case at mediation, I find it very helpful to have a mediator with similar experience, who can suggest different ideas for settlement and various methods of executing those ideas.
I am a certified mediator in Michigan. I’m on the referral list for many northern Michigan counties, and open to conducting mediation elsewhere. If are interested in using me as a mediator, please email me.