Harnessing the Power of Alternative Dispute Resolution in Family Law: Back to the Basics

Here in Washtenaw County, our family law attorneys are no strangers to alternative dispute resolution (ADR) and resolving matters outside of court proceedings. The spirit of encouraging clients to work out disputes within mediation, collaborative divorce, peacemaking court, or retaining third party services (such as arbitrators and parenting time coordinators) is often mutual among counsel here. However, what happens in those instances where ADR is not supported by the other side? The good news is that our courts share a similar commitment and appreciation for the benefits of ADR and as a result, the court rules provide avenues for the courts to order parties to attempt certain ADR mechanisms before the court will intervene. The following discussion will run through a breakdown of the basics for some of the most common ADR tools.


Foremost, MCR 2.401 et seq. requires consideration of ADR in all civil cases in Michigan. More specific to domestic relations, MCR 3.216 lays out the parameters for alternative dispute resolution in family law cases. Under MCR 3.216(A)(1) all domestic relations cases “are subject to mediation under this rule, unless otherwise provided by statute or court rule.” Of course, while it is ideal for parties to stipulate to mediation, when there is a dispute over whether a family law case will enter the mediation process, a party can submit a written motion asking the court to order mediation per MCR 3.216(C)(1). A court may also on its own initiative order the parties to mediate. Any issue in a domestic relations case, including post-judgment matters, can be referred to mediation.

As of 2020, the Courts may also order parties to mediate discovery disputes. Pursuant to MCR 2.411(H), courts “may specify that discovery disputes must first be submitted to the mediator before being filed as a motion unless there is a need for expediated attention by the court.” MCR 2.411(H) (3). An order to mediate must specify the scope of the issues or motions referred and whether the appointment of a mediator is on an ongoing basis (MCR 2.411(H)(1)). The court may also appoint an expert under MRE 706 for cases involving complex electronically stored information (ESI) (MCR 2.411(H)(4)).

Limitations to Ordering Mediation

Cases of Violence, Abuse, or Neglect T here are some limitations to the Court’s ability to order mediation in family law cases and practitioners must take these into account before filing a motion. Courts may not submit a contested issue in a domestic relations action to mediation without first conducting a hearing to determine whether the order is appropriate “if the parties are subject to a personal protection order or other protective order, or are involved in a child abuse and neglect proceeding.” MCR 3.216(C)(3). However, if the protected party requests mediation, the court may order it without a hearing. (MCR 3.216(C)(3)). The court rule in MCR 3.216(D)(3)(a-e) also lays out exemptions to mediation orders: child abuse or neglect; domestic abuse, unless attorneys for both parties will be present at the mediation session; inability of one or both parties to negotiate for themselves at the mediation, unless attorneys for both parties will be present at the mediation session; reason to believe that one or both parties’ health or safety would be endangered by mediation; or for other good cause shown. (Emphasis added). MCR 3.216(D)(1)-(2) additionally provides parties 14 days after receiving notice of an order to mediate to file a written motion objection, which must then be set for hearing within 14 days after it is filed.

Given the importance of ensuring that each party is free of fear and coercion from the other party during the mediation process, MCR 3.216(H) (2) likewise requires that mediators conduct reasonable domestic violence inquiries at the outset and throughout the mediation. It is especially important for attorneys to also be vigilant on both sides to ensure that vulnerable clients are operating free of coercion and that clients prone to being instigators are not engaging in coercive behavior that may impact the integrity of the mediation. The recent case of Pohlman v Pohlman, 507 Mich 928, 957 NW2d 338 (2021)1 serves as a reminder of the importance for mediators and attorneys to make sure that the domestic violence screenings are conducted so that settlements reached in mediation are not later called into question on those grounds.

ADR Requiring Mutual Consent of the Parties

Mediation is a powerful tool that the court can order without the consent of both parties so long as the other requirements of MCR 3.216 are met. Unfortunately, that’s where the court’s unilateral powers for ordering ADR end. Pursuant to MCR 3.216(A)(4), however, the “court may order, on stipulation of the parties, the use of other settlement procedures.” (Emphasis added). This provision serves as an important reminder that counsel should make sure to memorialize the parties’ agreement to submit disputes to alternative dispute resolution, particularly for arbitration and parenting time coordinators, in formal and filed consent orders. The signed agreement to submit to some form of ADR gives courts an avenue to order and enforce alternative dispute resolution mechanisms, other than mediation, in the event of later disputes. These types of consent orders must contain certain language and provisions to ensure their enforceability.


Binding arbitration in domestic relations matters is governed by statute (MCL 600.5070 et seq.) and court rules (MCR 3.216, 2.410(C), and 3.602) in addition to having been endorsed by the Court of Appeals. A number of issues in domestic relations cases may be submitted to binding arbitration upon stipulation including, real and personal property; child custody; child support (subject to the restrictions and requirements in other law and court rules); parenting time; spousal support; costs; expenses and attorney fees; enforceability of prenuptial and postnuptial agreements; allocation of parties’ responsibility for debt as between the parties; and other contested domestic relations matters. (MCR 600.5017). Unlike in mediation where the mediator does not have the authority to make decisions for the parties, arbitrators are the decision-makers, and their awards are binding on the parties in the same way as if a judge had issued it. The difference here, however, is unlike a ruling by a judge, arbitration awards have much more 1 Also see Pohlman v Pohlman, No 344121 (Mich Ct App Jan 30, 2020) (unpublished). (Held that because Plaintiff had not asserted or demonstrated that she was prejudiced by the mediator’s failure to screen for domestic violence during mediation, any noncompliance with MCR 3.216(H)(2) was harmless). limited avenues for appeal.

Once the parties agree to submit themselves to binding arbitration, MCL 600.5072(1) specifies that arbitration may not be ordered by the court unless each party acknowledges in writing or on the record that the party has been informed of the following: arbitration is voluntary; arbitration is binding and the right of appeal is limited; arbitration may not be appropriate in all cases and is not recommended for cases involving domestic violence; the arbitrator’s powers and duties will be outlined in a written arbitration agreement that has to be signed by the parties before arbitration can begin; the arbitrator has the power to decide the issues assigned to arbitration and the court will enforce the decisions; each party may consult with an attorney or choose to be represented by an attorney throughout the process, and parties may seek free legal services if unable to afford an attorney; the payment of costs of arbitration, including payment of the arbitrator’s fee, is the responsibility of the parties. An order to arbitrate and an arbitration agreement are required for an enforceable arbitration award. The arbitration agreement should be careful to include all the powers and duties of the arbitrator to avoid issues later. For example, in certain cases like property division, unless the arbitration agreement specifies that the arbitrator must follow court rules, caselaw, and statutes, the arbitrator is free to and may deviate from the same and it is not grounds to vacate or refuse to confirm the award per MCL 600.5081(3).

Similar to the mediation statute, MCL 600.5072(2) provides that “[i]f either party is subject to a personal protection order involving domestic violence or if, in the pending domestic relations matter, there are allegations of domestic violence or child abuse” the court may not refer the case to arbitration unless the exclusion is waived. However, in this case the waiver is a bit more involved because a party may not waive the exclusion unless they are represented by an attorney throughout the action and during arbitration along with being notified of the following on the record: (a) the arbitration process; (b) the suspension of the formal rules of evidence; and (c) the binding nature of arbitration. Finally, the court must also find that the waiver is informed and voluntary and it must place those findings and the waiver on the record. Note: child abuse or neglect matters are specifically excluded from arbitration per MCL 600.5072(4).

Parenting Time Coordinators

Parenting time coordinators (PCs) may not be instinctively thought of as a traditional ADR mechanism, but given the nature of PC agreements and the goal of keeping the parties out of court, it can be argued that it falls within this realm. Typically, PCs are only sought in cases afflicted by chronic conflict involving parenting disputes. However, just like with arbitration, the parties here must mutually agree to the appointment of a PC. MCL 722.27c governs orders for PCs and subsection (2) allows the court to “enter an order appointing a parenting coordinator if the parties and the parenting coordinator agree to the appointment and its scope.”

The order appointing a PC must contain several specific provisions as spelled out in MCL 722.27c(3)(a)-(g), including but not limited to, duration of the appointment, explanation of the PC costs and division of payment responsibilities, and the scope of the PC’s duties. The scope of the PC’s duties in resolving parenting conflicts may include any of the topics listed in MCL 722.27c(3)(e)(i)-(viii) such as transportation/exchanges, daily routines, discipline, health care management, parenting schedule disputes, and school-related issues. PCs often work to resolve these disputes via the mediation process. But when that is not possible, consider including binding authority for certain issues or at least a window for the recommendation to be binding until it is objected to by either party. Note: only attorney PCs may be granted such binding authority. It is also a good idea to clearly specify in the order that all PC recommendations are to be put in writing to keep a clear record and minimize misunderstanding. MCL 722.27c(10).

PCs may resign at any time with notice to the parties and the court or the court may terminate the appointment if it is no longer helpful. MCL 722.27c(4)-(5). However, if the court finds that a PC resigned due to nonpayment (which was intended to force the PC to resign), the Court may use contempt sanctions to enforce such payment of the fees. PCs may also be called to testify if the court finds the testimony to be useful in resolving the dispute before the court. An important limitation on testimony is that the PC may not testify regarding statements received from a child involved if the PC believes it would be damaging to the child. MCL 722.27c(12).

Again, like mediation and arbitration, MCL 722.27c(2) also provides that “[b]efore appointing a parenting coordinator, the court shall consider any history of a coercive or violent relationship between the parties. The court shall ensure that the order appointing the parenting coordinator provides adequate protection to the victim of a coercive or violent relationship.” PCs also have the responsibility to make these inquiries, including conducting the domestic violence screening used in mediation, PCs also have the responsibility to ensure that, if such concerns exist, the parties are not brought within proximity of each other without a request by the party at risk and steps to address the safety concerns. MCL 722.27c(7) and (8).


In family law, we encounter families in some of the most difficult circumstances, confronted by the most intimate aspects of their lives. While mainstream media loves to portray family law via dramatized court battles, modern day family law trends are heading down a different, more cooperative path, as the preceding discussion demonstrates. Thankfully, alternative dispute resolution is a concept embraced here in Washtenaw County. As a community, we need to continue coming together to shape the narrative of family law to focus the public, clients, and colleagues on alternative dispute resolution and its benefits. It means that we need to continue educating ourselves on ADR and keep up-to-date on the developing court rules, statutes, and case law. Although some cases do ultimately require litigation as the best form of advocacy, in most other cases, no one is better equipped to know the specific needs of a family than the parties themselves. So, let’s also be mindful to do our part via ADR to help our clients be the authors of the new chapter in their lives and that of their families.

Miriam Saffo practices family law at Nichols, Sacks, Slank, Sendelbach, Buiteweg & Solomon, P.C. Saffo has dedicated her entire career to serving families and children. Saffo is trained in Collaborative Practice and dedicated to all methods of Alternative Dispute Resolution. She can be reached at miriam@nsssb.com, or at 734-994-3000.