Mediation is a confidential negotiation led by a neutral. The mediator does not decide the case. The parties decide whether, and on what terms, it settles.
John R. Foley has tried and settled cases in southeast Michigan since 1981 and has served as a mediator since the 1990s. He accepts mediations in divorce and custody cases, probate and trust disputes, commercial and business disputes, and the full range of civil matters, either by agreement of the parties or on referral from the court.
Mediation is a structured settlement negotiation led by a neutral third party. The mediator has no power to decide anything. The mediator’s job is to help each side understand the other side’s position, test the strengths and weaknesses of its own case, and find terms both sides can accept. If the case settles, it settles on terms the parties chose. If it does not, the parties are exactly where they were before, with their right to a trial intact.
In Michigan, courts can order mediation in civil cases under MCR 2.411 and in domestic relations cases under MCR 3.216, and many cases are sent to mediation by the judge before trial. Parties can also agree to mediate at any time, before a lawsuit is filed or at any point while one is pending.
A session usually opens with a short joint meeting, where John explains the ground rules and each side may briefly state its position. Many mediations then move to separate rooms (or separate Zoom breakout rooms), and John goes back and forth between them. This is often called “caucus” or “shuttle” mediation.
In private caucus, a party can speak frankly about what matters most, what it is worried about, and where it has room to move. John does not carry anything to the other room that a party asks him to keep private. As the day goes on he will test each side’s assumptions, point out risks a judge or jury may see differently, and help the parties narrow the gap with proposals they can live with.
Mediation can be facilitative, where the mediator helps the parties reach their own terms, or evaluative, where the parties ask the mediator for a candid view of how the case is likely to come out. Drawing on more than forty years in the courtroom, John can do either, and the parties choose how much evaluation they want.
If the parties reach agreement, the terms are written down and signed before the session ends, so nothing is lost or reopened overnight. The attorneys then turn the signed terms into the documents the case needs, such as a settlement agreement, a consent judgment of divorce, or a stipulated order, and file them with the court. A settlement reached in mediation is as binding as any other contract or consent judgment.
If only some issues settle, the agreed issues can be signed off and the rest left for the judge. If nothing settles, the parties keep every right they had going in. Many cases that do not settle at the table settle in the days that follow, using the progress made in the room.
Under MCR 2.412, what is said in mediation is generally confidential and cannot be used later as evidence in the case, with narrow exceptions set out in the rule, such as information about child abuse or neglect that the law requires be reported. The mediator does not report to the judge on who said what or why the case did not settle. That confidentiality is what allows the parties to speak openly.
Sessions can be booked online, where the current fee and the open dates are shown. For a multi-day mediation, a case with more than two parties, or a court-ordered referral, contact the firm to arrange scheduling and to clear conflicts.
A mediated settlement holds because the parties wrote it. No one has to live with terms they did not accept.
The firm handles new matters on a consultative basis. Call the office, or send us a message through our contact form.