Michigan Malpractice Law And Case Valuation

Case Valuation (Michigan Mediation) in Michigan Western

Description and Authorization:
In 1983, the Western District of Michigan, through Local Rule 42, established a procedure that is similar to arbitration but is referred to by the court as mediation. To distinguish the procedure from true mediation, it is often referred to as Michigan Mediation or case valuation. The program, which was first established twenty years ago in the state courts and then adopted by the federal district courts in Michigan, is currently the most popular form of ADR in the Western District of Michigan. In cases referred to the program, counsel present their case to a panel of three neutrals (called mediators), who render an evaluation based on counsels' arguments and evidence. All civil cases are eligible and may be referred by stipulation of the parties with court approval, by motion of one party with notice to the other, and by the court's own motion. Referral is mandatory in cases whose sole basis of jurisdiction is diversity and for which the rule of decision is supplied by Michigan tort or medical malpractice law. Each party pays a fee of $150 to the mediators.

Valuation Hearing:
The time frame for completion of the ADR process is established in the case management and referral orders and is monitored by the ADR clerk. The ADR clerk sets the date, time, and place for the hearing if the parties fail to make their own arrangements. At least thirty days before the hearing date, the ADR clerk sends notice of the hearing to all counsel and the mediators, indicating deadlines for submission of fees and proof of service of the written submissions, as well as the date, time, and place of the hearing.

Party Roles and Sanctions:
Pursuant to Local Rule 42, parties are required to attend the hearing unless excused by the panel chair. When scars, disfigurement, or other unusual conditions exist, they may be demonstrated to the panel in person; however, no testimony may be taken from any party. In practice, the parties are almost always excused from appearing at the hearing.

Filing of Award:
Within ten days of the hearing, the panel must notify each counsel in writing of its valuation of the case, including all fees, costs, and interest. The award may be rendered by any two of the three mediators. Within twenty-eight days of the date of the valuation, each party must submit to the ADR clerk a written acceptance or rejection of the valuation. If all parties accept the valuation, the award is entered on the docket unsealed, and the plaintiff's counsel is directed to prepare for submission to the court a judgment consistent with the valuation and approved by opposing counsel. If any party rejects the valuation, the docket notes that the outcome is sealed.

De Novo Request:
If a party rejects the valuation award, it must do so in writing within twenty-eight days of the mailing of the award. If the award is unanimous and the defendant accepts it but the plaintiff rejects it, the plaintiff must, to avoid payment of actual costs to the defendant, obtain a trial verdict that is more than 10% greater than the valuation. If the award is unanimous and the plaintiff accepts it but the defendant rejects it, the defendant must, to avoid payment of actual costs to the plaintiff, obtain a trial verdict that is more than 10% less than the valuation.

If the panel decision is not unanimous and both parties reject the valuation and the trial verdict is not more than 10% above or below the valuation, the defendant must pay actual costs if the trial verdict is more than 10% above the valuation, and the plaintiff must pay actual costs if the trial verdict is more than 10% below the valuation. A party against whom actual costs are awardable under Local Rule 42 forfeits the right to tax costs otherwise collectable by that party. (See Local Rule 42 for discussion of Sixth Circuit and other laws regarding taxing of costs and fees as sanctions in this procedure.)

Confidentiality:
Statements by counsel and the brief or summary of factual and legal positions prepared by the parties are not admissible in any court or evidentiary proceeding. If the valuation of the panel is rejected, the ADR clerk places all documents in a sealed envelope before forwarding them to the clerk of court for filing. Neither the parties nor their lawyers may reveal the award to the judge in a nonjury case.

Contact us if the above is similar to your legal case or legal problem. Contact our Michigan Personal Injury lawyers at our law firm located in Southfield, Michigan. Your legal options will be explained.