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THE MISSION OF THE OAKLAND COUNTY BAR ASSOCIATION IS TO SERVE THE PROFESSIONAL NEEDS OF OUR MEMBERS, IMPROVE THE JUSTICE SYSTEM AND ENSURE THE DELIVERY OF QUALITY LEGAL SERVICES TO THE PUBLIC.
Articles and letters that appear in LACHES do not necessarily reflect the official position of the Oakland County Bar Association, and their publication does not constitute an endorsement of views that may be expressed. Readers are invited to address their own comments and opinions to:
LACHES | Oakland County Bar Association 1760 S. Telegraph Rd., Ste. 100 Bloomfield Hills, MI 48302-0181
Will Case Evaluation Remain Viable After the 2021 Amendment to MCR 2.403, or Will It Fall by the Wayside? The Michigan Supreme Court’s amendment to the case evaluation process has had a notable impact on ADR. ByJackWeston 11 What I’ve Learned as an ADR Provider
A seasoned practitioner shares the wisdom he’s gained over decades of handling alternative dispute resolution matters. BySheldonG.Larky 14 Mediation 2.0
Now is the time to revisit our mediation process to address the harsh realities of today’s conflicts.
The Collaborative Process as an Expansion of Available ADR Options
The Collaborative process, in which all parties work together to resolve disputes, offers an alternative to litigation.
On Civility
By Dean M. Googasian
United States District Judge Julian Abele Cook was a hero in our house when I was growing up. Judge Cook was a close friend of my parents’ and was someone I knew before I knew who he was, or how important he was, in legal circles. He was, in my experience, a kind, decent man who treated all people with respect inside and outside of his courtroom.
It was no surprise to learn later that Judge Cook was a pioneer in civility efforts. In 1996, as chief judge of the United States District Court for the Eastern District of Michigan, Judge Cook established the first Civility Committee as part of a plan to reduce expense and delay in civil cases. The plan called for the State Bar of Michigan and the Detroit chapter of the Federal Bar Association (FBA) to propose a civility plan for the court to consider adopting. What arose from that work are the Civility Principles of the Eastern District of Michigan.1
Nearly a decade later, Judge Bernard Friedman reinvigorated the effort. The new committee created by Judge Friedman concluded that the civility principles didn’t need updating — they just needed publicizing. Not enough lawyers were aware of them. This effort led to the eventual adoption of the Lawyer’s Commitment of Professional Civility, which summarized the civility principles.2 It is worth a read. Judge Cook and Judge Friedman were later honored by the FBA for their efforts with the creation of the FBA’s Cook-Friedman Civility Award.
Although nearly 30 years have passed since the civility principles were initially adopted, there is a sense among some lawyers that civility is lessened of late. Perhaps there are still not enough lawyers aware of the need for civility or the benefits to be derived from practicing with civility. Whether this results from the explosion of the number of attorneys, email replacing phone calls, or larger societal trends, there is a perception that lawyers are less civil than they used to be. But not all lawyers.
I had the privilege a few years ago of nominating Michael Sullivan for the OCBA’s Professionalism Award. The purpose of the award is
“to recognize a member of the Oakland County Bar Association who is a model of civility and respect in the legal profession.” I’ve known Mike for many years in many capacities. I’ve worked with him on bar activities. I’ve worked with, and opposite, him and his fine firm on cases over the years. Mike, in my opinion, models civility in all aspects of his professional life. He has an uncanny ability to be polite, professional, and personable all while being a staunch advocate and obtaining outstanding outcomes for his clients.
Because Mike is among the most civil lawyers I know, I thought I’d ask him for his insights on civility in the practice of law.
Is civility good for your law practice? Absolutely. I’ve always believed that, as a lawyer, you get better outcomes for your clients by treating people with respect. First, you’re going
to avoid unnecessary fights. And most fights are unnecessary. I believe you can accomplish a lot more for your clients if you’re not always at war with the other side over procedural “stuff” that just doesn’t matter.
Some clients, and some lawyers, equate being civil to the other side with being soft. Do you agree? No. You can be civil and still be an outstanding advocate trying to win. You don’t have to be rude in order to win or achieve excellent outcomes for your clients.
I’ve been lucky in my practice that I tend to encounter many of the same lawyers on the other side over and over again. There is a mutual respect there and an understanding that neither side is looking to gain unfair advantage in every exchange. We understand that each side is going to have a very different view of the merits of the
case, but we’re not in the business of making other lawyers’ lives, or their clients’ lives, miserable while we do that. We can be cooperative on procedural matters without sacrificing advocacy on the merits. Fighting on every issue is a hard way to go through your professional life. And in the end, very expensive for the clients.
What is the best way to teach, or to learn, civility?
Watch and learn from good examples. I absorbed civility from the culture at our firm, Collins Einhorn Farrell PC. I was fortunate to have excellent role models. I learned from Brian Einhorn, Mort Collins, and Clay Farrell how to treat opposing counsel and their clients with respect. It was simply what was expected.
If you’re a newer attorney, find mentors in your firm or within the bar. If you get a chance to peel away from your desk, go watch a Wednesday morning motion call. Watch how the lawyers interact with each other and with the judge. If you hear about a trial going on with great lawyers trying a case, go watch if you can.
Any other tips for newer attorneys?
Simple. e Golden Rule. Treat opposing counsel as you and your client would like to
be treated.
If you develop a reputation as a lawyer who is civil, who is not going to play games on simple procedural matters, you’ll be less likely to have opposing counsel play those games with you and your clients, and your clients will be better off. Acrimony costs money. And it expends limited capital with the court.
Educate clients that civility is not weakness. Some clients need to hear that just because a lawyer represents the other side doesn’t mean the lawyer is a bad person. Or, just because you’re being polite with the other side, or cooperative, doesn’t mean you’re a pushover or that by doing so the client loses any ground in the case. Quite the opposite. Civility is much, much less expensive in the long run. And much more effective. e client will be better off at the end of the day with a lawyer who is civil and respectful.
Dean M. Googasian is the president of the Oakland County Bar Association.
Footnotes:
1. “US District Court for the Eastern District of Michigan Adopts the ‘Lawyer’s Commitment of Professional Civility,’” Michigan Bar Journal, May 2009, Michael J. Riordan, p. 42. 2. mied.uscourts.gov/PDFFIles/08-AO-009.pdf
“Educate clients that civility is not weakness. Some clients need to hear that just because a lawyer represents the other side doesn’t mean the lawyer is a bad person.” —Michael Sullivan
Oakland County Bar Association Launches OCBA Mediation Service
By Jennifer Quick
The Oakland County Bar Association is excited to announce the launch of its new mediation service, OCBA Mediation Service, aimed at providing a streamlined, efficient, and cost-effective alternative for parties with general civil cases in one of the Oakland County district courts. is initiative, developed at the suggestion of members of the district court bench, underscores the association’s commitment to promoting justice and improving the legal process for all parties involved.
e OCBA’s mediation service is designed to be flexible and accommodating, offering parties the choice between in-person mediation sessions at the OCBA’s facilities and virtual sessions via Zoom. is flexibility ensures that all parties can participate in a manner conducive to their needs.
Each mediation session is structured to last two hours, with an option to extend to four hours if necessary. is time frame allows for a focused and productive discussion aimed at resolving disputes efficiently. e service currently has the capacity to handle up to eight two-hour mediations per day, operating three days a week.
WHO CAN PARTICIPATE
After being ordered to mediation, parties with general civil cases in one of the Oakland County district courts can advise the court’s alternative dispute resolution clerk that they would like to select OCBA Mediation Service to be their mediator.
Parties who fail to select a mediator by the deadline may also be ordered to OCBA Mediation Service by the presiding judge.
SCHEDULING AND LOGISTICS
Similar to the process of case evaluation, the OCBA’s mediation service is designed for efficiency and convenience. Mediation sessions are typically scheduled around 60 days from the issuance of the mediation order. Prepayment to the OCBA is required at least seven days in advance of the scheduled session. If a session is canceled within seven days of the scheduled
date, the payment is nonrefundable. Additionally, failure to receive payment by the due date could result in the parties being removed from the schedule.
To streamline the scheduling process, the OCBA will use its existing database system currently utilized for case evaluations. is ensures a seamless transition and integration of the mediation service into the OCBA’s established operations.
e OCBA will handle the prescheduling of mediations, including the selection of mediators from a rotating pool based on their availability. is approach ensures fairness and efficiency in the assignment of mediators, allowing for a well-organized and equitable process.
e OCBA will pay the mediators for their service, and we will handle all notifications to the parties, as well as the reporting and communications with the courts.
SUBMISSION OF CASE SUMMARIES
To facilitate a productive mediation session, parties are required to submit case summaries directly to the mediators, with the OCBA copied on these communications. ese summaries, along with a concise intake form that provides a clear statement of facts, must be submitted at least seven days prior to the mediation date. is requirement ensures that mediators are well prepared and informed, allowing them to guide the mediation process effectively.
CALL FOR QUALIFIED MEDIATORS
e OCBA is currently seeking qualified members to join its pool of approved mediators. Serving as a mediator in the OCBA’s new mediation service offers a unique opportunity to contribute to the legal community and assist parties in resolving their disputes amicably.
Serving as an OCBA mediator offers numerous benefits beyond compensation, including professional development, adding to your résumé, and networking opportunities.
QUALIFICATIONS AND APPLICATION PROCESS
To be considered as an approved mediator, applicants must meet the following qualifications:
1. OCBA Membership: Applicants must be current members of the Oakland County Bar Association.
2. Training and Experience: Applicants must meet the training and experience criteria specified either in MCR 2.411(F) (2) or in the SCAO Mediation Training Standards and Procedures pursuant to MCR 2.411(F)(3).
3. Professionalism: Applicants must demonstrate a commitment to upholding the highest standards of professionalism and ethics.
Interested members should submit their application, found at ocba.org/mediation-service, including a résumé detailing their qualifications and experience, to the OCBA. e selection process will involve a review of applications by an advisory panel and may include interviews to assess candidates’ suitability for the role.
Confirming that OCBA mediators meet the standards and qualifications set forth in MCR 2.411 ensures the courts and parties a consistent level of service from any OCBA mediator to which they may be assigned.
WHEN WILL THE SERVICE BE AVAILABLE?
At the time of this writing, the OCBA is still finalizing modifications to its case evaluation software system and some of the forms to be used, as well as building its pool of mediators. We anticipate the service being ready to accept orders from the court within one to two months of this article’s publication.
e OCBA looks forward to providing a beneficial service for the 14 Oakland County district courts, for our member attorneys, for the clients they serve, and for the public.
Jennifer Quick is the executive director of the Oakland County Bar Association.
•
Mathew Kobliska
CALENDAR OF EVENTS
Please Note: Dates listed below were sent to the publisher on August 1, 2024. It is possible that some of the events listed below have since been altered. Please check ocba.org/events for the most up-to-date schedule of events.
OCTOBER
45TH ANNUAL RACE JUDICATA — THE FINAL LAP
Join the OCBA for the 45th and final annual family-friendly 5K run and walk through the beautiful neighborhoods of Birmingham and Bloomfield Hills starting at Covington School! Whether you’re a seasoned runner or just looking for a fun way to stay active with your family and friends, this event has something for everyone. Leashed dogs and strollers are also welcome. Chip timing, custom race medallions, T-shirts, awards, and more are all included. Register yourself or a team today at ocba.org/race.
NOVEMBER
BAR NIGHT OUT MIXER: NOVEMBERFEST
Join us as we merge the New Lawyers Committee’s annual Novemberfest with our quarterly Bar Night Out membership mixer. Enjoy a festive atmosphere, appetizers, and a cash bar as you mix and mingle with fellow OCBA members. For more details and to register, visit ocba.org/novemberfest!
30TH ANNUAL YOUTH LAW CONFERENCE
This one-day event educates high school juniors and seniors about career options in the legal profession and the general legal process, provides tools for better decision-making, and discusses a variety of legal issues as they pertain to the students. By tailoring this program to the interests and issues of a teen audience, the OCBA and its volunteer attorneys deliver an engaging program that is a hit with students and teachers alike. To learn more, visit ocba.org/events
LUNCHEON LIMINE: MEET JUDGE YOUNG AND JUDGE WALLACE
Our bench/bar brown-bag luncheon series continues virtually via Zoom and will feature Judges Adrienne N. Young and Randy J. Wallace from the Michigan Court of Appeals Second District. They will share their preferred protocols and tips for attorneys who don’t regularly engage in appellate practice. Bring your questions and join us for an informal discussion of legal topics and practice issues. Space is limited, so register today at ocba.org/events
28 & 29
OFFICE CLOSED IN OBSERVANCE OF THANKSGIVING
What better way to kick off our 100th anniversary than a new home! We’re excited about our upgraded space and continuing evolution as the law firm of choice for clients’ transactional, litigation, business, and personal needs. Unlike larger firms that have chosen to grow for growth’s sake and court Big Law combinations, we remain uncompromisingly independent and committed to the size and culture that make us uniquely Maddin Hauser.
Contemplating Your Own Move?
We’re looking to add first-rate legal talent to our ranks - people who share our values and want to help shape our future. If you’re thinking about a change for yourself or a group, we offer compelling career opportunities.
Expand Your Knowledge with These Great Seminars!
OCTOBER
10 Update on the State of Juvenile Law 2024 (11:30 a.m. – 1 p.m.)
A seminar for criminal and juvenile defense appointed counsel
Presenter: H. Elliot Parnes, Esq., H. Elliot Parnes, PLLC
This Zoom seminar will review developments in juvenile law, including new legislation, court rules, and case law from the past year.
Worth 1.5 hours of criminal and juvenile training credit for appointed counsel
15 Arraignments and Other Issues: The Magistrate’s Perspective (Noon – 1 p.m.)
A seminar for criminal defense appointed counsel
Presenters: Magistrate Michael E. Sawicky, 47th District Court; Magistrate Marie Soma, 52-3 District Court; Magistrate Michael Bosnic, 52-1 District Court; and Magistrate Elizabeth C. Chiappelli, 52-4
District Court
Moderator: J. Randall Secontine, Esq., Law Office of J. Randall Secontine, PLLC
This Zoom seminar will review arraignments, small-claims hearings, informal hearings, and bond setting. Come hear the magistrate’s perspective to better prepare for court.
Worth 1 hour of criminal and juvenile training credit for appointed counsel
NOVEMBER
14 Update on the State of Criminal Law 2024 — Part Two (11:30 a.m. – 1 p.m.)
A seminar for criminal defense appointed counsel
Presenter: Alona Sharon, Esq., Alona Sharon, P.C.
This Zoom seminar will provide an overview of the most recent published Michigan Court of Appeals cases with a focus on sentencing decisions. Join us for an in-depth discussion of hot topics, emerging issues, and practice pointers in criminal law.
Worth 1.5 hours of criminal and juvenile training credit for appointed counsel
Will Case Evaluation Remain Viable After the 2021 Amendment to MCR 2.403, or Will It Fall by the
Wayside?
THE PREAMENDMENT CASE EVALUATION PROCESS
Historically, case evaluation was a process that took place after the close of discovery. The parties to an action filed case evaluation summaries, stating their respective positions. The attorneys then appeared in front of a panel composed of a plaintiff attorney, a defense attorney, and a neutral, who was usually a nonlitigating attorney or retired judge. These days, the hearings in the busier circuits are principally conducted by Zoom, although many jurisdictions still hold them in person. The parties argued their respective positions to the panel and were then split up, the panel speaking first with plaintiff counsel (What would you take to settle?) and then with defense counsel (What would you pay to settle?). The panel then rendered an “award,” which was its recommended settlement amount.
By Jack Weston
In early December 2021, a divided Michigan Supreme Court issued ADM File No. 2020-06, which amended MCR 2.403, the provision governing case evaluation. This amendment, which took effect on January 1, 2022, substantially altered the existing case evaluation process. Now that the amendment has been in effect for over 18 months, practitioners have had the opportunity to assess the impact the amendment has had on the overall viability of case evaluation as a method of resolving cases, and whether it will survive going forward, in light of alternative methods of dispute resolution.
The parties then had 28 days to either accept or reject the award. Should both parties accept, the case was considered settled as to the accepting parties, and the court would enter a judgment on its own accord if the parties had not timely submitted a stipulation and order of dismissal. However, if one or more of the parties rejected the award, the case would proceed as to all rejecting parties. Significantly, the case evaluation rules also included sanction provisions under MCR 2.403(O). If a party rejected a case evaluation award, in order to avoid sanctions, it must better its position by greater than 10% of the amount of the award at time of trial. A failure to exceed this 10% would cause the rejecting party to be liable to the nonrejecting party for all of the nonrejecting party’s reasonable fees and costs, to include attorney and expert fees, from the accept/reject date of the case evaluation award through trial. If both parties rejected the award, the sanction provisions would apply equally to each rejecting party.
BACKGROUND LEADING UP TO THE AMENDMENT DECISION
In 2011, the State Court Administrative Office (SCAO) conducted a study on the case evaluation process and its impact on docket management, of which this author was part. The study amassed opinions from 3,000 lawyers and judges. Interestingly, a significant majority of lawyers felt that facilitation/mediation was a more valuable form of alternative dispute resolution, while judges rated the case evaluation process more favorably than those other forms of ADR — even though the study showed that case evaluation added several months to case disposition times. This author recalls, however, significant discussions as to how few cases were actually resolved through a mutual acceptance
of the case evaluation award, although it was difficult to quantify how many cases may have been ultimately resolved as a result of subsequent discussions stemming from that initial award. Given the mixed findings, no changes to MCR 2.403 were recommended.
In 2018, a follow-up study took place, this time involving 1,000 lawyers and judges from three of the courts that took part in the 2011 study. In a nutshell, the findings were similar to those of the 2011 study, but support for the case evaluation process had eroded even further. At the ADR Summit taking place in the same time period, the majority of attendees who completed a survey either agreed or strongly agreed that case evaluation should be voluntary; however, the majority of respondents also disagreed or strongly disagreed with eliminating case evaluation sanctions altogether.
In 2019, SCAO’s Case Evaluation Court Rules Review Committee promulgated its recommendation for amending the case evaluation process. Most significant was its recommendation, contrary to the survey findings from the ADR Summit, to remove the sanction provisions set forth in MCR 2.403(O). Its reasoning was that the removal of the sanction provisions would “level the playing field” for plaintiffs and defendants, due to the consensus that case evaluation primarily favored defendants and insurance carriers over plaintiffs since the insurance carriers could more easily absorb the cost of potential sanctions for rejecting an award. In further support, it was noted that (a) sanctions forced settlements not based on the merits of claims and defenses; (b) sanctions were not used by other states; and (c) sanctions were no longer needed since less than 1% of circuit court civil claims go to trial.
THE 2021 AMENDMENT
Most significantly, the amendment to MCR 2.403 eliminated the sanction provisions discussed above. While the Supreme Court noted that the parties may stipulate to reinstating sanctions for rejecting case evaluation on a case-bycase basis, this author has never seen that happen in any cases in which he has been involved.
The amendment further made case evaluation optional, dependent on what the parties to an action decide to do. Upon agreement, the parties to a civil action may now choose to submit a stipulated order referring the case to facilitation/ mediation/arbitration as an alternative to case evaluation. If the trial court has already entered a scheduling order, the parties are required to submit a stipulated order removing the matter from case evaluation and substituting an alternative form of dispute resolution in its place. This
stipulated order must specify when the ADR will take place — which must be no later than 60 days after the close of discovery.
On the other hand, if the trial court hasn’t yet entered a scheduling order, the parties are required to submit the stipulated order within 120 days after the first responsive pleadings are filed. As is the case when a scheduling order has already been entered, the stipulated order must specify what alternative form of dispute resolution is to be used in place of case evaluation, with the ADR taking place within 60 days after the close of discovery, along with relevant disclosure and discovery deadlines.
Procedurally, the timeline for filing case evaluation summaries was reduced, and summaries now must be filed at least seven days before the hearing date, instead of the previous 14 days. Late fees will still apply, and if a party submits their summary inside of the seven-day period, they will be assessed a $150 late fee. If the party, however, submits their summary within 24 hours of the hearing date, they will be assessed an additional $150 late fee. The accept/reject period for the award remains 28 days.
Essentially, post-amendment, case evaluation has now simply become the default ADR process. Only if the parties fail to stipulate to some form of alternative dispute resolution will the trial court submit the matter to case evaluation. Many of the smaller circuit courts no longer put together case evaluation panels at all, unless specifically requested to do so by the parties to a case.
EFFECT OF THE AMENDMENT ON CASE EVALUATION AS AN ADR PROCESS
Traditionally, if case evaluation was unsuccessful in resolving a case, the parties would request or the court would order the matter to facilitation. Since the amendment, however, there has been
a marked rise in parties simply substituting facilitation for case evaluation at the beginning of the case, as outlined above. In this practitioner’s experience, because case evaluation no longer has the “teeth” of the sanction provisions, it has become far less effective in resolving cases, as parties are now free to reject an award without consequence.
A major drawback to case evaluation cited by practitioners has been the fact that little time is allocated to each case under the case evaluation process. This author has sat for more than two decades as a case evaluator in multiple southeast Michigan jurisdictions and has evaluated as many as 20-25 cases in a single day. The focus of a case evaluation hearing is to render an award based on a review of the summaries, a brief argument by the attorneys of record, and a short individual conversation with each of the attorneys as to what they would like to see as an outcome. There is no time for protracted negotiation, as that is not the purpose of the hearing. It should be noted, however, that in jurisdictions where the dockets are not so crowded, case evaluation can be a far more protracted process, where considerable time is allocated to each case.
In contrast, facilitation is a focused process in which a facilitator jointly selected by the parties spends as much time as is necessary in trying to resolve that one case. Many times, even after multiple hours of negotiation, a facilitation may be adjourned so that the parties can conduct additional investigation, after which the facilitation is resumed. This author has been a facilitator for a number of years, as well as having an active caseload of litigated matters, and has found that facilitation resolves a far greater percentage of cases than does case evaluation. Further, there has been an increase in “early” facilitations, which can often resolve cases even before discovery is concluded.
In conversations with many counsel on both
sides of the “v,” this sentiment is widely shared, as the benefit of compulsory case evaluation has long been in question. Post-amendment, the parties now have more control and flexibility in their litigation and settlement strategies.
OFFERS OF JUDGMENT
Another offshoot of the 2021 amendment is a marked increase in the utilization of offers of judgment under MCR 2.405, which was also amended in 2021. Without delving deeply into the offer of judgment provisions, this rule allows a party to serve a written settlement proposal on an opposing party. e proposal must contain a sum certain for which the offering party is willing to stipulate to the entry of a judgment. If the proposal is accepted within the time specified in the rule, one of the parties may file the offer and a notice of acceptance with the court, and the case is settled. Prior to the 2021 amendment, case evaluation essentially abrogated the use of offers of judgment because MCR 2.405 was inapplicable in cases with a unanimous case evaluation award.
As was formerly the case with the rejection of a case evaluation award before the 2021 amendment, rejecting an offer of judgment may now subject the rejecting party to liability for actual costs. is, however, is at the discretion of the court, which may decline to award these costs to a prevailing party for reasons that are in the “interest of justice.” ese reasons may include such considerations as that (1) the offer is de minimis or trivial in the context of the case, or (2) the case involves an issue of first impression or an issue of public interest. Many practitioners expect that the offer of judgment rule will now be utilized more frequently by litigants and can adequately replace the primary purpose of MCR 2.403(O) by putting pressure on the parties to achieve a settlement.
An added benefit of the increased use of both offers of judgment and alternate forms of ADR is the potential reduction in litigation costs for both sides, as well as an accelerated resolution of cases, thus reducing any docket backlog.
CONCLUSION
Ultimately, it appears that the case evaluation process is being increasingly eroded by other forms of ADR, as well as by the increased use of offers of judgment. While some justices believe that the amendments discussed here will facilitate docket management, that sentiment is not universally shared.
Jack Weston, an executive partner located in Secrest Wardle’s Troy o ce, has been a litigation/trial attorney for over 30 years. As one who has always endeavored to practice law fairly and ethically, Weston has expanded his personal practice to include serving as an independent mediator/facilitator to assist other parties in reaching an amicable resolution of their cases. Weston has facilitated cases involving trucking, construction, rst- and third-party motor vehicle, and premises liability litigation for both large and small plainti and defense rms.
Weston earned his Juris Doctor from the American University Washington College of Law, preceded by a Bachelor of Business Administration degree from the George Washington University. He is a member of the rm’s Motor Vehicle Litigation; Premises Liability; Product Liability; Property, Fire and Casualty; and Trucking/Commercial Vehicle Litigation practice groups.
STEVEN SUSSER JESSICA FLEETHAM
What I’ve Learned as an ADR Provider
By Sheldon G. Larky
As a full-time alternative dispute resolution (ADR) provider for more than three decades handling more than 5,000 matters, I have had great opportunity to observe the good and bad of ADR. Because of significant differences between arbitration and other forms of ADR, this article will not talk about my experiences with arbitration. Here is what I have learned.
People want to be heard. Disputants want to be heard. They want someone to listen to the facts and emotions. They desire to express their feelings and observations. They have a story to be told. Every person and company going through the ADR process feels they have been wronged and wants it to be heard.
The law’s fine, however. There is a perennial question of whether it is better for an ADR provider to be selected because of their knowledge of the law or whether there is another factor that is more important.
My answer is simple: Knowing the law is fine, but it should be the least consideration in ADR matters. Facts, circumstances, and emotions are the keys in matters brought to an ADR provider. Other than in arbitrations, ADR providers are not the decision-makers. The purposes of ADR are to provide methods and forums to resolve issues outside of court-
rooms. Again, other than in arbitration, a goal is to give parties a forum to reach resolution, a place where self-determination allows solutions.
Unless a person believes the ADR provider has no knowledge of applicable law, they should keep statements about the law to a minimum in a presentation summary.
Each ADR provider is different. While many ADR providers have gone through similar training programs and classes, once a person becomes an ADR provider, they find a style and protocol which fits that person. For a litigator, it is important to know the ADR provider’s way of handling matters. A question an attorney should ask before selecting an ADR provider is, Will the person fit the situation I have?
Early use of ADR methods works. Some of the most successful matters I have handled
occurred where parties and attorneys went through ADR before even considering the possibility of preparing a lawsuit. In those situations, counsel understood avoiding litigation for a variety of reasons made more sense than subjecting clients to possible public scrutiny. From both a financial and emotional aspect, early ADR worked because the parties and counsel were motivated to reach an agreement.
Read what the ADR provider wants. Every ADR provider I know has an outline as to how they want the ADR meeting to be conducted, what information should be given, and the format in which they want the information, and they may establish other protocols. Some ADR providers, such as myself, do not want a summary presented as a pleading, but rather submitted as a letter. Read what the ADR provider gives you. Follow what that person expects to see.
Educating the client. Before entering into an ADR session, attorneys need to educate clients about the process. Clients have to hear what is expected of them, their role in the process, and how the attorney’s role is different than in a courtroom. ADR providers will want to talk with clients, and clients should understand their need to be expressive. The beauty of ADR is self-determination, and clients must be clear they are the ultimate decision-makers.
Defining issues. ADR providers want to know the issues being confronted. Those issues should be outlined at the beginning of every summary, even before stating the facts. Doing so will allow the ADR provider to be in a proper mental state to prepare for the session.
Stating the facts. Many years ago, there was a television program called Dragnet involving crimes in Los Angeles. The fictional star was Los Angeles Police Sgt. Joe Friday, whose standard line was “The facts, sir, just the facts.” ADR providers want to hear the relevant facts surrounding the issues presented. The facts should be facts and not hyperbole. Nothing is gained by denigrating the opposing party. The same goes for negative comments about opposing counsel. Using derogatory or inflammatory adjectives and adverbs serves only to heighten adversity and provoke negative outbursts.
The need for sufficient information Sometimes lack of adequate information hampers ADR proceedings. If parties and counsel do not have all documents, testimony, and other needed information to conduct a meaningful session, the ADR process is slowed. While using ADR meetings as a
possible information-gathering situation is useful, the intent should not be to use them as a discovery tool, but rather a resolution tool. Allocate su cient time. First, know how much time the ADR provider is giving. Inform the ADR provider the needed amount of time. If there are going to be time constraints, they should be addressed with opposing counsel and the ADR provider before the initial session. And always expect the ADR session to last longer than what was planned. Talk about damages up front. ADR providers do not have crystal balls. ey are not clairvoyants nor magicians. If damages are an issue, the amount of damages in specific dollars should be stated along with the reason the amount is being given. Saying “whatever is fair and reasonable” is wishy-washy and provides no insight as to the extent of harm or breach. Expect delays. Not every matter resolves itself the first time people meet. ere are myriad reasons why initial sessions don’t reach
resolution. Expect delays and continuations. Unless there is an absolute deadline, anticipate having a second or later session.
Zoom and COVID-19 changed the landscape. If someone told me in 2020 I would be Zooming, I would have said, “I don’t drive that fast.” COVID-19 and Zoom (as well as other virtual meeting services) have permanently altered the venues where ADR sessions occur. When the world shut down in-person meetings in 2020, the population learned a different way of meeting. Where once ADR providers, like myself, held almost all sessions in person, the norm now is the opposite. Certainly, using remote visual tools is convenient and cost efficient.
For ADR providers, remote sessions have allowed an ability to serve a wider audience. I never thought I would one day handle an ADR session where one party was in China, a second in France, and a third in Michigan. But now almost anywhere in the world is a
Mediation 2.0
By Christopher J. Webb
Hpossibility for an ADR provider to offer their services.
Yet the downsides are the lack of touchy-feely and the closeness of in-person interactions, the loss of watching total body language and demeanor, and occasional signal and equipment issues, as well as the fact that it generally takes more time to conduct and attend remote sessions.
Sheldon G. Larky is a West Bloom eld ADR provider. He serves the OCBA as co-chair of its Legislative Committee. For the State Bar of Michigan, Larky is a member of the Standing Committee of the Client Protection Fund, and he is a representative to the American Bar Association’s House of Delegates.
aving served as a mediator for over 20 years, I have had the privilege of using my training in facilitative mediation to extricate parties in litigation or, better, to help them avoid litigation altogether. My work has dealt with disputes ranging from construction, contracts, and labor relations to domestic, elder, and public policy matters. And now is the time to revisit our mediation process to address the harsh realities of today’s con icts, especially during these di cult economic and social times.
I call it Mediation 2.0.
Whether as a mediating practitioner you use a facilitative or evaluative approach, we need some additional “tools” to improve the efficacy of our present process to optimize mediation outcomes, especially for mediations that occur within the context of litigation.
Imagine if a court adopted an administrative order from, say, a Michigan circuit court that permitted the mediator to request persons relevant to the dispute to attend the mediation and provide input relevant to the dispute.
Or, imagine the same order permitting the mediator to request the litigants to produce documents within the context of the mediation to be shared with the parties.
Let’s take the growing backlog of cases facing our court system today. It is not uncommon for our courts to face 1,000 or more cases on their dockets in need of speedy, cost-effective, and fair resolution. Under Mediation 2.0, the parties
would be required to mediate under a mediation administrative order. Armed with the ability to have documents or persons produced, the mediator would be able to utilize a voluntary process to reality-test the positional representations that we as mediators have all experienced when offered by either the parties or their respective counsel. With these additional tools in place, the odds of prompt resolution would increase and needless protracted litigation would dramatically be reduced.
Importantly, the process is one that either party may elect to discontinue if, for example, a party refuses to produce the requested document or the third party is unavailable. Mediation is still within the control of the parties. And lastly, the proven attributes of today’s mediation process, including the duty of the mediator to maintain the confidentiality of what has or has not occurred in the mediation, remain.
Mediation 2.0 — it is time we added some tools to our tool belts! Please contact me if you
would like to have a copy of the draft administrative order I authored as well. A dialogue with our courts would be an auspicious beginning!
Christopher J. Webb, a self-employed mediator, arbitrator, and facilitator addressing business and public policy disputes, served as general counsel for a global engineering, manufacturing, and construction rm for over 25 years and is currently a panel member of the American Arbitration Association and the International Institute for Con ict Prevention and Resolution. More information is available at Law & ADR O ces of Christopher J. Webb, J.D., PLC. See webbadr.com.
The Collaborative Process as an Expansion of Available ADR Options
By Carlo J. Martina
In the 45 years I’ve been practicing law, and particularly over the last 25 years when I’ve increasingly concentrated exclusively on practicing family law, I’ve seen a lot of changes in the procedural process of how family lawyers such as myself handle family law disputes.
When I first began to practice family law early in my career, contested cases were quite adversarial, right from the get-go. Following the filing of the complaint, and maybe in quick succession a motion or two, there came the exchange of innumerable, often irrelevant interrogatories. Then came the requests to produce or admit. Things were subpoenaed; depositions taken; and experts, when expertise was needed, were lined up on both sides. Trial dates were both precious and momentous, even if you weren’t absolutely sure yours would be the one starting as scheduled. Most cases didn’t go to trial. They were often settled on the “first trial date” or the “for sure second trial date” that followed. Brass tacks settlement discussions and agreements were often honed using the “courthouse steps-style” process. While counsel and their clients waited for their case to be called, their lawyers huddled in the court’s unused conference rooms, jury rooms, cafeteria, and hallways. There was very little constructive face-to-face conversation between both attorneys and both clients, almost until the day of trial. Very, very rarely, you might have convinced the other side to squeeze in a mediation session with one of the few mediators who even handled family law mediation. Sometimes the first frank discussions of the issues and settlement options between counsel occurred when the judge elected to call counsel back in chambers for a confidential chat. Even after that input, if the case didn’t settle, it could still be preempted by a reasonably ripe criminal, product liability, or commercial case. Sometimes cases took years, from beginning to end, to get a final judgment of divorce entered.
Over time, the process for handling family law disputes evolved, both formally and informally.
One significant change was due to the efforts of the State Bar of Michigan’s Family Law Section Council — former section council Chairs Maxine Virtue, Scott Bassett, and Linda Hallmark and representatives Ethel Terrell, Margot Poznanski, Bill Kandler, and Michael Nye. They championed a judicial bench dedicated to handling just family law cases. Signed into law in 1996, and effective in 1997, the Revised Judicature Act was modified, adding MCL 600.1011, which created a distinct family court bench. Gov. John Engler’s appointment to the first vacancy of the Oakland County Circuit Court’s family law bench was none other than Linda Hallmark. You can read more about it in “A History of Michigan Family Court” by Scott Bassett in the Michigan Bar Journal, July 2017, pages 32-34.
With the creation of the family court bench, use of various alternative dispute resolution processes such as mediation and arbitration became
more prevalent.
On May 9, 2000, the Michigan Supreme Court adopted MCR 3.216, Domestic Relations Mediation. MCR 3.216(A)(1) states that “all domestic relations cases, as defined in MCL 552.502(m), and actions for divorce and separate maintenance that involve the distribution of property are subject to mediation under this rule, unless otherwise provided by statute or court rule.” Although subject to seven amendments since, the current version of the rule provides guidance in terms of the scope and applicability of the rule to domestic relations cases; how courts adopt a mediation plan; how referrals and objections to mediation come about; and the selection, listing, and qualifications of mediators, including the mediation procedure for both facilitative and evaluative mediation, as well as fees and standards of conduct for mediators.
However, in large part due to the adversarial structure of the law and court procedures at the time, things didn’t change much in how the majority of family law disputes were handled.
For many of Michigan’s practicing lawyers, myself included, the training we received in law school, combined with attending occasional seminars, hopefully some mentoring, and real-world experience practicing family law, provided us with sufficient tools to represent our clients’ family law interests in formal court proceedings. The procedural structure for resolving such disputes provided by the Michigan Court Rules and Local Court Rules was a tried-and-true way to protect the clients’ interests while preserving our ethical obligations required by the Michigan Rules of Professional Conduct. If the case was not already pending when we were retained, we’d interview the client, determine whether the presenting facts suggested the need for an ex parte order under MCR 3.207, file the complaint for divorce, present the ex parte order to the court when relevant along with the appropriate forms required by both the clerk and the Friend of the Court if minor children were involved, and serve it on the opposing party. More often than not, there would be a countercomplaint for divorce and an answer to that. If there were existing issues between the parties regarding custody, parenting time, or support, motions would get filed to get the central contested issues into the system under MCR 3.204, and Domestic Relations Verified Financial Information Forms would be exchanged, after which both counsel and their clients would begin the long slog toward reaching what would hopefully be a final, binding resolution to the issues before the court.
At some point prior to a trial before the assigned judge, the case would typically be ordered into mediation under MCR 3.216.
Even with postjudgment matters, the traditional adversarial system worked roughly the same way. You’d interview the client; review the facts they shared with you, including the judgment of divorce and any existing postjudgment orders; and then file your motions and requests for temporary orders if deemed necessary, conduct discovery, respond to any counter-motions, and begin to prepare for trial.
More often than not, prior to going to trial on the postjudgment/order matters before the assigned judge, particularly if the postjudgment issues were in any way complex, the matter would be ordered into either a pre-bench trial hearing before the referee or mediation.
Once in mediation, the “plaintiff” and the “defendant” would typically be ensconced in their separate corners, either physically or virtually, often unable or unwilling to talk to one another, while the mediator went back and forth between rooms trying to get the parties to a settlement. They may have had a chance to read the other side’s mediation summary before mediation started, but often, the attorneys involved, and even their clients, hadn’t discussed the specifics and rationale behind the other party’s interests and perspective on the contested issues, much less their take on possible options available for their resolution. As to where both sides were at on any particular issue and how the other party might be willing to resolve it, that crucial bit of knowledge many times wouldn’t be shared with the client and their lawyer until the mediator announced to the parties and lawyers, usually still in separate rooms, that they’d reached an agreement on the issues. At that point, while a resolution may have been ultimately arrived at on the issues, and a trial avoided, the parties (and often their counsel) may have been unnecessarily put through the ringer. The adversarial traditional legal process does not facilitate the parties’ engaging in cooperative thinking for coming up with solutions to their disagreements. It often just leaves them angry. That takes both a short- and long-term toll on the parties and their children, even adult children. There will be events in the children’s lives for which they will want both parents there. If the divorce is handled as an adversarial process instead of a collaborative one, the dynamics between the parents become so strained that the children, as they experience those life events where they would have wanted both parents present, are often in agony, concerned that one or both of their parents may blow up or otherwise ruin their special day.
In the meantime, in 1995, on the other side of Lake Michigan, a Minnesota lawyer named Stu Webb came to realize that irrespective of the eventual outcome, the litigation process itself
imposed a terrible and long-lasting burden on his family law clients and their families. As a result of his work, and that of many others, a significant new evolution in the process of how to handle family law disputes came into being. It wasn’t litigation — far from it — but it also wasn’t mediation. It involved a collaborative process in which the attorneys and clients worked together to help the clients craft resolutions to their existing disputes. Within several years, training groups were formed, and the process not only spread to many states, but even gained a strong foothold in Canada, the U.K., and several European countries. By the late 1990s, the International Academy of Collaborative Professionals (IACP) was formed by a group of lawyers, psychotherapists, and financial planners. They established standards of ethics and training. You can read more about them at collaborativepractice. com/sites/default/files/IACP%2012.2023%20 Standards%20and%20Ethics.pdf. The IACP currently has members in 42 states, in 22 countries, and on five continents.
The first such Collaborative process training utilizing the IACP’s approved training model took place in Michigan in 2004. It was led by a Canadian team composed of a lawyer, a licensed mental health professional, and a divorce financial adviser. I was at that first training. I am capitalizing the word “Collaborative” here because I’m not using it in the generic sense. Rather, I’m referring to a very specific type of formal dispute resolution process.
It was really a paradigm shift away from any concept I’d held before that for handling family law disputes. Around that time, the Collaborative Practice Institute of Michigan (CPIM) came into being. You can read more about CPIM and its vision, mission, principles, and values, and find both basic and advanced training schedules as well as resource information on the Collaborative process, at collaborativepracticemi.org
Then, in 2007, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 07-447, Ethical Considerations in Collaborative Law Practice, which approved the use of the Collaborative process for family law disputes.
Although attorneys have been using the Collaborative process since it was first introduced in Michigan in 2004, on December 8, 2014, Michigan finally enacted the Uniform Collaborative Law Act, MCL 691.1331 et seq. (hereinafter, “the act”). It sets out the applicability of the act to handling a broad range of family law disputes using the Collaborative process as an alternative to litigation. See “The Uniform Collaborative Law Act: Michigan Not Left Behind” by Deborah Bennett Berecz and Gail M. Towne in the Michigan Bar Journal, June 2015, pages 40-43. The act provides at MCL 691.1332(e)
that the Collaborative process can be utilized to resolve any dispute, claim, or issue arising under the family or domestic relations law of the state. This includes:
(i) Marriage, divorce, dissolution, annulment, and property distribution.
(ii) Child custody, visitation, and parenting time.
(iii) Alimony, maintenance, and child support.
(iv) Adoption.
(v) Parentage.
(vi) Premarital, marital, and postmarital agreements.
Despite the existence of the act, there still lacked uniform, statewide-recognized Michigan Court Rules to establish procedures for handling and finalizing Collaborative cases. That was remedied effective April 2019, when the Michigan Supreme Court authorized the passage of MCR 3.222 and 3.223. These court rules provide a process for handling Collaborative cases in Michigan. They also make the Collaborative process more accessible and efficient in handling family law disputes. See also “The Collaborative Evolution: Time to Stop Reflexively Litigating and Start Collaborating” by Carlo J. Martina in the Michigan Family Law Journal, November 2018, pages 19-21.
While I’ve been mediating family law cases for over three decades, and for the last 15-20 years handled Collaborative cases mixed in with my litigation practice, in late 2022 I stopped accepting and filing appearances in litigated family law matters and decided to dedicate the rest of my career to either providing mediation for cases other attorneys already have in litigation or personally representing clients exclusively utilizing the Collaborative family law dispute resolution process. If Collaborative is not appropriate for someone’s family law dispute, or their spouse insists on litigation, I refer them to a family law litigation attorney.
The Collaborative process is not suitable for every family law case — for example, those family law cases that illustrate presenting facts that would likely exempt a case from domestic relations mediation under MCR 3.216(D)(3) (a) through (e), those situations legitimately requiring ex parte restraining orders under MCR 3.207 to mitigate a reasonable legitimate risk of irreparable harm, or those involving personal protection orders. However, the vast majority of family law disputes can be competently handled by lawyers properly trained in the Collaborative process. Getting the formal training provided by CPIM, or another training group utilizing the IACP’s recognized basic training model, is absolutely essential to doing this competently, as this
process is a huge paradigm shift from anything you’ve likely been taught in law school or utilized in the past to help your clients resolve disputed family law issues.
Candidly, when parties to a family law dispute are represented by trained Collaborative lawyers who believe in and follow the principles and methods that are part and parcel of the recognized Collaborative process, I’ve never seen a more productive, respectful, dignified way to handle a client’s family law matter.
To be considered a Collaborative matter as defined under MCL 691.1332(e), the act at MCL 691.1334(1)(a) requires use of a written record, (b) signed by the parties, (c) stating the parties’ intention to resolve a matter through the Collaborative process under the act, (d) describing the nature and scope of the matter, (e) identifying the Collaborative lawyer representing each party in the process, and (f) including a statement attested to by each lawyer confirming their representation of the party in the process. Most experienced Collaborative family law lawyers use a variation of the Collaborative Participation Agreement template developed by the CPIM, which further expounds on and defines the principles and goals of the parties and is consistent with MCL 691.1334.
The formal Collaborative process envisioned under the act eschews litigation and its many shortcomings and is quite different in both form and substance. On the first page of every Collaborative-related pleading and SCAO-approved form, at the top, under “State of Michigan” and the circuit court identifying information, you’ll find: “In the matter of Jane Doe, Party A, and John Doe, Party B.” One party is not “versus” the other. There is no “plaintiff,” nor is there a “defendant.” The paradigm shift is evident with the very way that important pleadings and forms are captioned.
To protect the parties’ privacy both during and after the process, MCL 691.1346 provides that a Collaborative law communication as defined by MCL 691.1332(a)(i) and (ii) is confidential to the extent agreed to by the parties in their Collaborative Participation Agreement. While there are always opportunities for the lawyer and client to confer in private, both before joint Collaborative meetings as well as during meetings by way of physical or virtual breakout rooms, for the most part, the Collaborative process involves both lawyers and both clients actively taking part in face-to-face discussions, candidly but diplomatically sharing concerns and interests regarding the facts and issues needing to be addressed, including suggested resolutions and the basis for those suggestions. The same is true with regard to input from the divorce coach and any neutral divorce financial planner or neutral
appraiser, if needed and agreed to be retained by the parties. All the professional participants sign the parties’ Collaborative Participation Agreement.
While the confidentiality provisions of the act and the parties’ Collaborative Participation Agreement provide protection for candid conversations and the sharing of personal information, for the parties to be truly candid with one another, the pall of possible litigation initiated by the other party’s lawyer can’t hang over them. It would be extremely difficult for the parties to be fully open and candid with one another, even with the confidentiality provisions in the agreement, if they thought that the lawyer sitting across from them might one day be subjecting them to cross-examination at a hearing or trial. For that reason, among others, under MCL 691.1339(1) and (2) of the act, once a lawyer becomes a participant in a Collaborative matter, they, and any lawyer in a law firm with which the Collaborative lawyer is associated, are disqualified from appearing before the court or tribunal to represent a party in a proceeding related to the Collaborative matter, unless, under (3) thereof, it’s (a) to ask a tribunal to approve an agreement resulting from the Collaborative law process or (b) to seek or defend an emergency order to protect the health, safety, welfare, or interest of a party if a successor lawyer is not immediately available to represent that person.
As lawyers, we need to understand where we stand in terms of our ethical obligations to our clients and need to be sure that the process we employ to help them settle their family law disputes meets the standards of the Michigan Rules of Professional Conduct. MCL 691.1343 provides that the act does not affect either the professional responsibility obligations and standards applicable to a lawyer or other licensed professional involved in the process, nor the obligation of a person to report abuse or neglect, abandonment, or exploitation of a child or adult under the laws of the state of Michigan. Those standards are met when the process comports with the act, applicable court rules, and Rules of Professional Conduct; the lawyers and other professional participants are properly trained in the Collaborative process and competent in their advocacy and advice; and the Collaborative Participation Agreement is drafted to anticipate issues of concern.
The Collaborative Participation Agreement is a binding contract. In addition to the basic requirements set forth in the act, typically both the CPIM Collaborative Participation Agreement template and variations thereof used by most Collaborative-trained lawyers cover a number of topics, including:
(a) Goals of the parties and counsel, as they
relate to committing to achieving an effective resolution without litigation, while minimizing the negative consequences often associated with divorce, and to resolving the issues in an atmosphere of honesty, cooperation, integrity, and professionalism.
(b) Cautions, such as recognizing that as with any other dispute resolution process, there is no guarantee of success, nor can it eliminate disharmony, distrust, and differences that may have existed in the past. Nonetheless, the parties commit, with the assistance of their trained Collaborative professional team, to applying their best efforts to create an atmosphere of harmony, trust, and cooperation as they move forward.
(c) A commitment to good-faith participation and disclosure. Similar to the Michigan Court Rules on conducting and responding to discovery in litigation cases, MCL 691.1342 of the act requires that “except as provided by law other than this act, during the collaborative law process, on the request of another party, a party shall make timely, full, candid, and informal disclosure of information related to the collaborative matter without formal discovery.” Additionally, the act provides in pertinent part that “a party also shall update promptly previously disclosed information that has materially changed.” So, to emphasize the importance of this, most templates, including the language offered by CPIM, have Sands v. Sands, 442 Mich 30; 497 NW2d 493 (1993), language to protect not only the parties and the integrity of the process, but also the attorneys. Counsel I’ve worked with over the years typically have their clients, early in the process, agree to exchange, at a minimum, a signed and notarized SCAO-approved Domestic Relations Verified Financial Information Form (CC 320) before substantiative negotiations begin, much less any settlement agreement is signed. Some lawyers use personalized affidavits. Some just go with having the settlement agreement itself specifically set forth and identify all of the parties’ assets, liabilities, sources of income, etc., with the parties attesting that by virtue of the reciting of this information, they have made a full disclosure to one another as set forth in their agreement.
When information, for whatever reason, needs to be received from a third party, such as an employer, a business, or
another source of information, and the client is reluctant to receive it from the other party directly, counsel I’ve worked with have agreed to have their client sign an appropriate release of information authorizing the third party to disclose the requested relevant information in their possession about the other party and, if need be, sign an affidavit that they have made a full and complete disclosure. The affidavit’s language is much like that used for responses from third parties to record subpoenas/depositions in litigation cases.
(d) Preservation of the status quo. The language in the Collaborative Participation Agreement mirrors that typically used by Michigan lawyers in litigation cases in either their ex parte or temporary orders entered under MCR 3.207. Except as the parties may otherwise stipulate at the outset in their Collaborative Participation Agreement, in this provision, the parties agree to preserve the status quo as it relates to their financial-related arrangements customarily used for the past six months for the depositing of paychecks, use of assets, spending, and paying of bills and agree to prohibitions against transfers, encumbrances, concealment, assigning, removal, or in any way disposing of any type of property or assets; changes in the title of assets or beneficiary designations; changes in any will or trust or estate documents; and the incursion of debts except in the ordinary course, among other restrictions and limitations. Again, the language closely follows that typically found in a temporary order of a litigated case. Of course, after the Participation Agreement is signed, and during the course of the Collaborative process, the parties may enter into additional interim contractual agreements to deviate from one or more of those restrictions and prohibitions.
(e) An agreement that the professional fees of their lawyers, and any mutually agreed-upon neutral financial experts or divorce coaches who have also signed the Collaborative Participation Agreement, be paid as due.
(f) A confidentiality provision, consistent with what was discussed above, in which it is agreed that all information provided during the process, to any member of the team, shall remain confidential as to anyone outside the Collaborative team. It also provides that the parties understand that if they instruct their attorney or any other member of the professional team
to withhold from the Collaborative team information that they believe is required to be disclosed, the attorney or other Collaborative team member may be required to withdraw from the process, unless the pertinent nondisclosure is remedied.
(g) A provision covering general rights and obligations, including not harassing the other party or disparaging them to their children or other third parties, maintaining all existing insurance coverage and beneficiary designations, and disclosing any changes contrary to the terms of the status quo language that they may have made within the six months prior to the signing of the Participation Agreement. It also often includes a commitment not to hire PIs or conduct surveillance of the other party.
(h) An acknowledgment of how the Collaborative process will handle final settlement agreements, including entry of a final judgment of divorce, or other final order if the process concerned postjudgment issues.
(i) An affirmation of the right to terminate the process for any reason with proper notice, but also a warning not to do so lightly out of mere frustration or impatience, or to threaten to terminate the process to gain a perceived advantage in negotiations. It also contains language echoing those provisions of the act under MCL 691.1335 that deal with beginning, concluding, or terminating the process.
Another great thing about the act and the relatively new court rules is that the Collaborative process can be employed at any time. The Collaborative process can be formally
entered into by the parties prior to the commencement of litigation, which I believe is preferable. If that’s the case, if the parties wish, even prior to reaching a global settlement though the Collaborative process, under MCR 3.222(B) (1), once they have signed the Collaborative Participation Agreement, they can actually start the 60-day or six-month statutory waiting period under MCL 552.9f. MCR 3.222(C)(2) permits the filing of SCAO form CCFD 24, Petition (Collaborative Law Process), to submit to the court’s jurisdiction until the process is concluded and a settlement reached. Once that is filed, they can also agree upon and file consent interim orders as necessary. Once they have a global settlement, they would file a joint notice to request entry of consent judgment/order through SCAO form CCFD 26, along with the proposed consent judgment/order and any other typically necessary forms and orders to conclude the action.
The parties can also formally enter into the Collaborative process after litigation has been commenced by entering into a Collaborative Participation Agreement and filing SCAO form CCFD 22, Joint Motion and Order to Stay Proceedings (Collaborative Law Process), in accordance with MCR 3.222(B)(2)(a).
Either way, the stay shall be effective for 364 days from the date of filing of the joint petition on a new case or the filing of the joint motion on an existing case; however, MCR 3.222(C)(2) (d) provides that unless the Collaborative law process has concluded, the parties shall file a status report with the court within 182 days of the filing of the petition, and again at 364 days, on an approved SCAO form. Upon stipulation of the parties, the court may extend the stay of proceedings.
The Collaborative Participation Agreement
is signed by the parties and their Collaboratively trained attorneys as well as all Collaboratively trained financial and mental health neutrals working with the parties. Once a final Collaborative divorce settlement agreement is reached, to keep the particulars of their agreement confidential except as required by statute or court rule, the parties in their agreement acknowledge possessing a copy of the agreement and ask that it be ratified by the court through its merger and incorporation in a subsequently filed judgment of divorce or postjudgment order. At that point, they would want to file a joint notice to request entry of consent judgment/order and any relevant pleadings, related orders, and forms.
In my experience, the Collaborative process has proved to be an effective, dignified method for dealing with family law disputes while protecting both the clients and their attorneys. It’s a rare occasion that the parties agree to terminate the process to seek resolution by way of litigation. I’ve also found that when it comes to subsequent client referrals of their friends, co-workers, or associates, Collaborative clients whom you’ve successfully shepherded though the process are a
great source of new business.
Unless you’re a die-hard litigator and don’t have the disposition to work civilly with others on a truly alternative dispute resolution method, you should seriously consider adding the Collaborative process to your family law dispute resolution toolbox. To find out more about the Collaborative process, and how you can get trained to effectively and competently participate in Collaborative process cases, the best place to start is the Collaborative Practice Institute of Michigan. CPIM is a not-for-profit organization composed of Collaboratively trained attorneys, financial experts, and mental health professionals. It provides both basic training and advanced training throughout the year, consistent with the International Academy of Collaborative Professionals Standards and Ethics.
ere are also practice groups throughout the state that you can meet with to get involved in the Collaborative process. In southeast Michigan, there’s the Collaborative Divorce Professionals of Southeast Michigan. You can find out more about them and how to get involved at betterdivorcemi.org. In southwest Michigan, there
is the Sunset Coast Collaborative Divorce group (sunsetcoastcollaborativedivorce.net). In the greater Grand Rapids area, there is the Collaborative Divorce Professionals of West Michigan (gentlerdivorce.com).
Carlo J. Martina is a Collaboratively trained family law attorney as well as a trained mediator, o ering early-, mid-, and late-stage mediation. He previously served as chair of the State Bar of Michigan Family Law Section Council, president of the Collaborative Practice Institute of Michigan, president of the Wayne County Family Law Bar Association, and a member of the OCBA’s Family Court Committee. He has testi ed before the Michigan Supreme Court on issues regarding changes to the rules of evidence, ethics, and child support guidelines and before Michigan state legislative committees on various family law matters.
What does improving access to justice look like? Is it representing a party on a pro bono basis? Perhaps it is participating in a community conviction set-aside clinic? Does coaching a mock trial competition team count? Certainly, a direct or indirect donation to a legal service provider facilitates access, correct? is list barely skims the surface but highlights that access to justice takes many forms.
I raise this question because I recently participated in an interview with representatives of the National Center for State Courts (NCSC) regarding self-help centers. e interview, part of a needs assessment the NCSC performed on behalf of the State Court Administrative Office (SCAO), evaluated resources, needs, attitudes, and knowledge relating to self-help centers and the needs of self-represented litigants (SRLs) in the Sixth Circuit. e conversation led me to think about self-help centers and the role that they play in the practice before circuit courts and how self-help centers facilitate access to justice.
Let me preface this article by acknowledging the incredible work of the members of the OCBA and State Bar of Michigan who regularly perform countless hours of pro bono service. Attorneys also provide free consultations through the OCBA Lawyer Referral Service. Additional hours are offered at reduced rates throughout our community. Members of the OCBA regularly participate in legal clinics and dedicate countless hours to coaching and judging for mock trial and moot court programs. ese services assist many people in our communities. Still, as anyone who has sat through a court call will tell you, the demand for legal services by those in need exceeds the supply of services, and that is where self-help centers come into play.
So, what do I mean when I refer to a self-help center? In Oakland County, self-help options have evolved throughout my career
A Brief Argument in Favor of Self-Help Centers
By Richard Lynch
and continue to do so. Some may recall when the Oakland County Law Library was located on the fifth floor of the courthouse tower under the guidance of Richard Beer. While it was used primarily by local attorneys, selfrepresented litigants would make their way up to the library and frequently turn to the well-thumbed SCAO form books for copies of defaults, blank motion forms, and other commonly used documents. Later, when the law library moved to the west wing extension, Laura Mancini and her staff added to the collection and helped SRLs access early legal research tools and self-help sites online. Legal aid services began providing drop-in clinics at the courthouse and in the community. e Sixth Circuit developed a personal protection order (PPO) office to assist individuals with the completion of PPO documents. In 2022, the Sixth Circuit’s Friend of the Court created a self-help desk in the FOC office where court users may file documents at a designated computer terminal with the assistance of a student intern. e Oakland County Clerk’s Office provides assistance via the Michigan Legal Help website at its E-Services Center on the ground floor of the courthouse tower. Few of these resources offer attorney assistance, and the demand for resources consistently exceeded supply.
I have witnessed the work of or worked with self-help centers throughout the 35-plus years that I have served in the court system.
rough this experience, I have seen self-help resources evolve from form packets in the Clerk’s Office and a publicly accessible law library to specialized plain-English collections within the law library to drop-in legal clinics staffed by legal service providers and law school clinic staff in a courthouse, local library, or community center to navigation tools on the Michigan Legal Help website and on to self-help centers.
Each of these tools helps SRLs. As a collective, they provide a toolbox that better
addresses the needs of individuals. Because SRLs, like any client, have different legal issues. ey frequently have other underlying life issues that complicate the resolution of the immediate legal matter and cannot rely upon Red Green’s ubiquitous duct tape to resolve either. e goal throughout the evolution of SRL legal resources has been to provide SRLs with tools that permit them to efficiently access the legal system when an attorney is not a realistic option.
Some attorneys have questioned investments in these tools. ey fear that self-help centers and similar tools diminish their practices by providing legal advice to SRLs or undermine the adversarial process because the court, by hosting these resources, assists a party. My observations do not support these concerns. First, the individuals I have witnessed utilize self-help centers typically lack the financial resources to retain counsel. Second, the self-help centers that I have seen in Michigan focus on basic issues like lowasset divorces, child support and parenting time issues, garnishments, motions to set aside convictions, and name changes. Self-help centers also assist individuals with many legal issues outside the jurisdiction of the circuit court, like estate planning, workers’ compensation claims, public assistance and Social Security claims, and landlord-tenant issues.
ird, navigators, the trained staff members who assist visitors to self-help centers, do not provide legal advice. Primarily, the navigators assist individuals who visit the center by explaining the available resources and terminology, clarifying that center staff cannot provide legal advice, and providing information to users about other community services that may assist them with the issues that bring them to the center. Finally, self-help centers provide a triage function by allowing SRLs to address the issues they can handle through the identified tools, thereby reducing the referrals to overburdened legal service providers.
Some states, including California, Arizona, Ohio, and Maryland, offer self-help centers with volunteer or staff attorneys who assist SRLs in representing themselves.1 Such centers offer an additional resource for SRLs and do not compete with legal service providers. To my knowledge, no Michigan self-help centers offer this service. Instead, they typically provide access to the Michigan Legal Help navigation tools2 and to either in-house or SCAO form packets. ese services help individuals craft legally appropriate documents that clarify their position. ese documents allow the opposing party or counsel to focus on the issue presented rather than a general airing of grievances for which no legal remedy exists. With more-focused arguments, the trial court may now more efficiently consider the issue before it rather than sorting through pages of non sequiturs or lengthy discourses on the
record in search of a cognizable request for relief or a valid defense. When one recognizes the time and resource limits that we confront as attorneys or judicial officers, helping SRLs develop clearer documents seems like a winwin situation, and this is why I support the expansion of self-help centers.
I hope you agree that the continued growth of self-help centers improves access to justice throughout Michigan and complements the work of legal service providers. e Self-Represented Litigation Network estimated that “more than 30 million people per year appear without legal representation in America’s state and county courts.”3 I suspect that attorneys who practice in the areas of family, housing, and debt collection law have at least one war story of a case complicated by an SRL who could have benefited from some guidance and resources in presenting their case. e
access provided by self-help centers assists all of us, as clearer, more cogent documents allow the legal system to operate more efficiently and effectively in delivering justice. Ultimately, isn’t that what access to justice means?
Richard Lynch is the court administrator for the Oakland County Circuit Court.
Footnotes:
1. See selfhelp.courts.ca.gov, azcourts.gov/ selfservicecenter, municipalcourt.franklincountyohio. gov/Self-Help-Resource-Center, hamiltoncountyohio. gov/government/courts/court_of_domestic_relations/ self_help_resources, and mdcourts.gov/helpcenter
As September was National Service Dog Awareness Month, we wanted to give a shout-out to those special animals who assist people with disabilities to be able to fully participate in everyday life.
e Americans with Disabilities Act (ADA) as well as Michigan law offer protections to individuals with disabilities who are assisted by service dogs. ese laws require state and local government agencies, businesses, and nonprofit organizations (covered entities) that provide goods or services to the public to make “reasonable modifications” to their policies, practices, or procedures when necessary to accommodate people with disabilities. Service dogs fall under this general principle. Accordingly, entities that have a “no pets” policy generally must modify the policy to allow service animals into their facilities.
Service dogs can be trained to perform many important tasks. e work, tasks, or duties a service dog performs must be directly related to their owner’s disability, such as:
• Helping people with visual impairments negotiate their surroundings safely.
• Alerting those with hearing impairments to important sounds, such as telephone calls, doorbells, and alarms.
• Reminding individuals to take medication.
• Assisting with holding and retrieving items, such as picking up items for a person who uses a wheelchair.
• Providing stability for a person who has difficulty walking.
• Preventing an autistic child from wandering away.
• Predicting and warning for oncoming seizures.
• Comforting and calming an individual when an anxiety attack is about to happen and taking a specific action, such as leading a person away.
It should be noted that other animals like emotional support, companion, and therapy animals are not considered service animals, so
Service Animals and the Americans with Disabilities Act
By Barbara P. Andruccioli
they are not covered under the ADA for public access. e main difference between an emotional support, companion, or therapy animal and a service animal is that it is the presence of the emotional support, companion, or therapy animal that provides the benefit. ey are not trained to perform a specific job or task that mitigates their handler’s disability.
In situations where it is not obvious that the dog is a service animal, a covered entity’s employees may ask only two specific questions:
(1) Is the dog a service animal required because of a disability?
(2) What work or task has the dog been trained to perform?
e employee is not allowed to inquire about the nature of the person’s disability, request any documentation for the dog, or require that the dog demonstrate its task. Service animals are not required to wear a vest, patch, or special harness identifying them as service animals. Although registration of service animals is not mandatory under the ADA, service dogs are subject to the same licensing and vaccination rules applicable to all dogs.
e ADA also does not restrict the type of dog breeds that can be service animals. A service animal may not be excluded based on assumptions or stereotypes about the animal’s breed or how the animal might behave. However, if a particular service animal behaves in a way that poses a direct threat to the health or safety of others, has a history of such behavior, or is not under the control of the handler, that animal may be excluded. If an animal is excluded for such reasons, staff must still offer their goods or services to the person without the animal present.
e ADA requires that service animals be
under the control of the handler at all times. In most instances, the handler will be the individual with a disability or a third party who accompanies the individual with a disability. e service animal must be harnessed, leashed, or tethered while in public places unless these devices interfere with the service animal’s work or the person’s disability prevents the use of these devices. In that case, the person must use voice or signal commands or other effective means to maintain control of the animal. For example, a returning veteran who has posttraumatic stress disorder and has great difficulty entering unfamiliar spaces may have a dog that is trained to enter a space, check for threats, and then come back and signal that it is safe to enter.
“Under control” also means that a service animal should not be allowed to bark repeatedly in a court, lecture hall, theater, library, or other quiet place. However, if a dog barks just once, or barks because someone has provoked it, this does not mean that the dog is out of control. If a service animal is out of control and the handler does not take effective action to control it, staff may request that the animal be removed from the premises.
A service dog is constantly monitoring every facial expression, movement, or sound the handler is making. If distracted, it could easily miss a sign, which could result in a medical crisis or injury. If you see a service animal, you should not attempt to pet or distract it. Many people would not be able to live independently without the assistance of these amazing animals.
Barbara P. Andruccioli is the Oakland County Probate Court register.
“Dogs have given us their absolute all. We are the center of their universe. We are the focus of their love and faith and trust. They serve us in return for scraps. It is without a doubt the best deal man has ever made.”
—Roger Caras
July 2024
2024-287503-FH
People v. Wallace
2023-286819-FH
People v. Pritchett
Andrew McGarrow
Scott Kozak
Andrew McGarrow
Paul Stablein
1 Embezzle $1K-$20K
Warren
Warren Brennan Alexander - Visiting Judge Rowe
2023-286127-FH
People v. Nickerson
Christian Arndt James Fillmore
2022-282728-FC
People v. Kirtley*
Dillon Salge Ben Gonek
2023-283625-FC
People v. Kirtley*
2024-287970-FH
People v. Roberts
2023-286207-FH
People v. Burks
2024-287564-FC
People v. Draper
2022-197748-NI
Darren Mathis v. Joshua Zyrek
Alexander - Visiting Judge
PottsVisiting Judge Grant
2023-286293-FH
People v. Ellison
Alexander - Visiting Judge
Ronayne
KrauseVisiting Judge Grant
*Cases Tried Together
2022-195738-CB
Rasha Ahmed v. Hasham Gayar
2023-199942-CK
Deborah Salvatore v. Tracy Hack
2020-181915-NF
Kimberly Mikulski v. Memberselect Ins. Co.
Dillon Salge
Ben Gonek
Kyle Paskulovich
Andrew Moxie
Andrea Ajlouni
Mitchell Ribitwer
Robert Novy Arnold Weiner
Bryan Schefman, Kathlin Sorensen
Jeffrey Bullard, Jared Andrzejewski
Jason DeSantis Paul Stablein
Raymond Salloum S. Head, S. Murphy, R. Haines
Jerard Scanland John Monnich Jr.
William Dobreff
Kenneth Williams, Kristina Dukanac
w/ Intent to Do GBH
The University of Detroit Mercy School of Law (UDM) is one of the Oakland County Bar Foundation’s top three grant recipients, and with good reason. Since the foundation’s 2004-05 grant year, UDM has requested support for a number of clinics or other causes that provide access to justice in significant ways.1 Last year, the foundation supported UDM’s Conviction Integrity Clinic, which had expanded to assist the Conviction Integrity Unit of the Oakland County Prosecutor’s Office.
According to a study by the University of Pennsylvania Carey Law School’s Quattrone Center, national statistics suggest 6% to 10% of convictions are wrongful.2 There are several organizations that seek to address this injustice, but the numbers are daunting. Unlike programs such as the Innocence Project, conviction integrity units operate within a prosecutor’s office and they do not represent clients. They examine cases for errors and thus foster the prosecutor’s duty to achieve justice and accountability even at the expense of their conviction rate. Section 3 of the ABA Criminal Justice Standards (4th ed, 2017)3 relates to the “prosecution function.” Standard 3-8.1 (“Duty to Defend Conviction Not Absolute”) provides that “the prosecutor should not defend a conviction if the prosecutor believes the defendant is innocent or was wrongfully convicted, or that a miscarriage of justice associated with the conviction has occurred.”
Michigan has five conviction integrity units:
According to a study by the University of Pennsylvania Carey Law School’s Quattrone Center, national statistics suggest 6% to 10% of convictions are wrongful.
Ensuring Proper Convictions in Oakland County
By Jeffrey G. Raphelson
in Wayne, Washtenaw, Oakland, and Macomb counties and in the Michigan attorney general’s office. Oakland County Prosecutor Karen McDonald campaigned on her goal of improving public confidence in law enforcement by, among other steps, establishing a conviction integrity unit. Following her election, McDonald tapped Beth Greenberg Morrow, a career-long defense attorney who did not practice in Oakland County, to act as a special prosecutor for reviewing the conviction of Juwan Deering. In 2006, Deering had been sentenced to life in prison for a Royal Oak Township fire that killed five children. His conviction was based on improper use of jailhouse informants and outdated fire science techniques. Following Greenberg Morrow’s investigation, McDonald concurred in a motion to vacate Deering’s conviction, which the Oakland County Circuit Court granted in September 2021. Thereafter, McDonald lobbied the Oakland County board of commissioners to fund a conviction integrity unit and hired Greenberg Morrow as its director in January 2022.
The assistance UDM clinic students provide to the Conviction Integrity Unit could not be more vital. Once it was established, the unit almost immediately received 50 letters or applications related to cases dating back to the 1970s. Today, it has 273 pending applications for review of convictions.4 Those applications that pass an initial screening can require hundreds of hours of work to review. The unit’s staff consists of its director (Greenberg Morrow), an investigator, and an administrative assistant. They cannot possibly review that volume of cases without assistance.
The first step in reviewing a conviction requires preparation of a complete workup of the case: reviewing the transcripts and police reports, preparing a thorough procedural history, and interviewing witnesses. The unit staff then evaluates the workup with the clinic students. If their assessment is that there is no path to innocence for the applicant, they close it out,
Continued on page 28
The Oakland County Bar Foundation’s mission is to ensure access to justice and an understanding of the law in our community. It is dedicated to:
Improving and facilitating the administration of justice in Oakland County and throughout the state of Michigan;
Ensuring to the fullest extent possible that legal services are made available to all members of the public;
Promoting legal research and the study of law as well as the diffusion of legal knowledge;
Promoting the continuing legal education of lawyers and judges; and
Educating the public as to their legal rights and obligations, and fostering and maintaining the honor and integrity of the legal profession.
If you know an organization that could use assistance to pursue these goals within Oakland County, please refer them to ocba. org/ocbfgrants, where they can find information about applying for a grant from the foundation.
Continued from page 26
informing the applicant in writing. Otherwise, they determine appropriate next steps, such as additional follow-up on evidence or other witnesses or more investigation.
A “path to innocence” is relatively rare. It is not enough that the convict disagrees with findings of the judge or jury or that they might have been overcharged (charged with a crime that carries more severe penalties than are normally sought for such conduct). However, there might be a path to innocence if the conviction was influenced by forensic science that has since been reconsidered. DNA, fire, and ballistics science have all advanced in ways that raise doubts about past conclusions suggesting guilt. Fiber, hair, and bite-mark analysis have also improved. Additionally, the unit’s review considers the quality of informants and witnesses. Was the informant given disclosed incentives to testify? Were they a repeat jailhouse informant? Was the conviction based on the testimony of a single eyewitness making a cross-racial identification? e unit similarly evaluates claims of false confessions or improperly influenced plea agreements.
e UDM Conviction Integrity Clinic was the brainchild of Valerie Newman, Michigan’s first conviction integrity unit director (appointed in 2018 for Wayne County). Greenberg Morrow joined the clinic as a co-director in September 2022. Together, Newman and Greenberg Morrow supervise clinic students reviewing applications for their respective counties. e clinic operates two semesters each school year with eight to 10 students per semester. e work is so rewarding that most of the students devote significantly more than the required 105 hours per semester (for three academic credits). Indeed, multiple students have become so invested in the work that they signed up to continue it as directed study after their clinic semester ended.
So far, the Oakland County Conviction
Footnotes:
Integrity Unit has recommended exoneration for three individuals and sought equitable relief for four others.5 Quite apart from the benefit clinic students provide to the prosecutor’s office and the convicts whose files they review, the students hone skills that will serve them well in their careers. ey learn the practical and ethical aspects of prosecution and the importance of making time to work for justice. e Oakland County Bar Foundation is proud to support the UDM Conviction Integrity Clinic’s work and the positive impact it will have on our community.
Je rey G. Raphelson is the president of the Oakland County Bar Foundation and a member and general counsel of Bodman PLC. He focuses his practice on commercial litigation, particularly matters related to the automotive and banking industries, as well as general commercial cases involving contract, intellectual property, corporate governance and dissolution, and dealer and franchise termination disputes. He has served on numerous State Bar of Michigan committees and is a current board member and treasurer of the Historical Society for the U.S. District Court for the Eastern District of Michigan.
1. UDM first began offering legal clinics in 1965, making its program one of the oldest in the country. It is consistently recognized with awards such as the Shaw Public Service Award from the Federal Bar Association and the State Bar of Michigan’s Cahill Bar Leadership Award, both of which it won in 2020. UDM currently has 12 clinical law programs, whose students collectively provide more than 25,000 hours of pro bono legal services each year to individuals whose income is below 200% of the federal poverty level.
2. Simon Shaykhet, “Oakland County Creates Conviction Integrity Unit, Seeks Justice for Innocent Prisoners,” February 15, 2022, wxyz.com/news/region/oakland-county/ oakland-county-creates-conviction-integrity-unity-seeks-justice-for-innocent-prisoners. According to Shaykhet, Oakland County Prosecutor Karen McDonald estimates that in the last 40 to 50 years, hundreds of criminal cases overseen by prior leaders of her office involved wrongful convictions.
3. These standards can be found at americanbar.org/groups/criminal_justice/standards/ProsecutionFunctionFourthEdition
4. Applications are eligible for review if they meet these requirements:
a. The applicant must be living.
b. The applicant must have been prosecuted by the Oakland County Prosecutor’s Office and sentenced by the Sixth Circuit Court in Oakland County.
c. The judgment of conviction, the sentence, and all appeals must be final.
d. The applicant must claim actual innocence, meaning the applicant played no role in the crime of conviction.
e. There must be new, credible, material evidence that was not specifically addressed by any court.
The Conviction Integrity Unit also has discretion to investigate other claims in the interest of justice under MRPC 3.8.
5. The unit has no authority to act officially on its investigations. It makes recommendations to Prosecutor McDonald, who consults with the relevant division chiefs. If McDonald agrees that relief is appropriate, her office can seek it from the Oakland County Circuit Court, but the judge must decide whether to grant the relief sought.
Butzel continues to grow with the addition of attorney and shareholder Randi G. Hermiz. He focuses his practice on matters relating to strategic growth and protection of personal and business finances. From guiding emerging companies to facilitating complex commercial transactions, Hermiz represents individuals and small and midsize businesses in a variety of sectors, with dealings in Michigan, across the U.S., and on a multinational scale.
Prior to practicing law, Hermiz established and operated successful businesses in the hospitality, import/export, and wholesale distribution industries. His comprehensive understanding of business operations complements his legal expertise, allowing him to effectively guide clients through intricate legal landscapes and toward sustained success.
Before joining Butzel, Hermiz founded and managed a boutique law firm that specialized in commercial transactions, estate planning, commercial litigation, and intellectual property law. Clients included high-net-worth individuals and business entities, primarily consisting of physicians and health care ventures. He also has served as general counsel to a national company in the restaurant industry and as in-house counsel to a multinational company in the tobacco industry.
Hermiz earned a J.D. from the University of Detroit Mercy School of Law and a B.A., cum laude, from Wayne State University.
Collins Einhorn Farrell PC proudly announces the election of Donald D. Campbell as its new president. The firm’s legacy of excellence continues with Campbell’s unanimous appointment by its shareholders.
Campbell, known as an ethics guru and “go-to” lawyer for lawyers and judges, brings renowned leadership in the field of legal and judicial ethics. A Detroit native and current resident, he is an award-winning attorney with more than 35 years of experience with a concentration in representing judges in Judicial Tenure Commission matters and lawyers in attorney grievance matters. He serves as an adjunct professor of law at the University of Detroit Mercy School of Law and was an associate counsel at the Michigan Attorney Grievance Commission for a decade prior to joining Collins Einhorn. Previously, he was an assistant prosecuting attorney in Oakland County.
EMPATHETIC
The mission of the Oakland County Bar Association is to serve the professional needs of our members, enhance the justice system, and ensure the delivery of quality legal services to the public. We fulfill our mission through our 30 committees, regular networking events, and numerous educational programs for both OCBA members and the public. We work hand in hand with the OCBA volunteer board directors and members, and we partner closely with the courts.
Below are recent examples of the OCBA at work in service to the bar and to the community.
Luncheon Limine: Probate Court
The OCBA hosted the latest engaging installment of the Q&A series Luncheon Limine on July 18. The Hon. Daniel A. O’Brien and Hon. Jennifer S. Callaghan from the Oakland County Probate Court joined over 60 OCBA members, who gained valuable insights into the judges’ preferred protocols and procedures, along with practical advice and wisdom. OCBA members were provided the opportunity to ask questions directly to the judges and engage in an informal yet enriching discussion covering a range of topics and practice issues.
2024 OCBA Golf Tournament
On Monday, July 22, 90 OCBA members and their guests enjoyed a day of golfing during the OCBA’s annual Bar for the Course Golf Tournament. This year’s event was held at the beautiful, historic Knollwood Country Club in West Bloomfield. Participants started their day with lunch before heading out on the 18-hole championship course. A couple of rain delays didn’t dampen their spirits. After golfing, participants enjoyed cocktails and hors d’oeuvres followed by a decadent dinner, prizes, and the announcement of this year’s top golfers.
The OCBA thanks the 26 sponsors who generously provided financial support to make the outing a success. Congratulations to the winning foursome of Paul Nirenberg, Sarah Nirenberg, Trevor Weston, and Owen Franks. Other winners included Tracey Lee and Damien DuMouchel for Longest Drive in the women’s and men’s categories, respectively; Paige Szymanski and Mike Rex for Closest to the Pin in the women’s and men’s categories, respectively; and Paige Szymanski for Straightest Drive.
Timothy Masters was only fifteen when he stumbled across a mutilated corpse lying in a field. For ten years, the police hounded him until – with the help of an astounding amount of misconduct – they finally succeeded in putting him behind
journey to exonerate himself for a crime he didn’t commit.
DRAWN TO INJUSTICE
NEW MEMBERS in July
Jennifer Barie
Ahmad Marwan El-Bkaily
Kendra Heger
Randi Hermiz
Emily D. Hessenthaler
Mario LaTona
Serena Faith Newberry
Jessica Notarberardino
Halley J. Peters
Jennifer Raviele
Stephen M. Ryan
Samar Farqad Sami
Morgan Taylor Weiner
Kenneth Neuman, Jennifer Grieco, Stephen McKenney, Matthew Smith, and David Mollicone
Seated left to right: Kimberley Ann Ward, Judge Kameshia Gant, Poncé Clay, and Judge Denise Langford Morris (ret.). Standing left to right: Nicole S. Calhoun Huddleston, Shanay Cuthrell, Latonya Hudson, Donna Foster Pearson, and Urenia Ricks-Johnson.
Judge Denise Langford Morris (ret.) administers the oath of office to incoming OCBA President Dean Googasian.
From left to right: Laura Peters, Christopher Tower, Brea Parizon, and Robert Goldman.
A packed room looks on as the annual meeting portion of the event begins.
Tom Ryan says hello to Powell Miller.
Three of this year’s 50-year member honorees, Abraham Singer, John Monnich, and Robert Schwartz.
Guests reconnect with colleagues ahead of the ceremony.
Outgoing President Melinda Deel, Judge Linda Hallmark, and incoming President Dean Googasian.
occupation is Our occupation
Sam Morgan & Greg Jones have a team of Employment Lawyers with decades of experience providing advice, counsel and representation to Employees and Employers in a wide variety of occupations, for:
• Wrongful discharge cases, including breach of employment contract, discrimination, harassment and retaliation
• Non-payment of compensation disputes, including commission, bonus and incentive compensation arrangements, and FLSA violations
• Enforcement of equity award agreements and minority shareholder rights
• Defending against mobility-killing non-compete and non-solicitation contracts
Separation agreement reviews and severance negotiations
Drafting employment contracts
HR counseling, defending against government investigations
Our team includes Senior Associate, Barbara Urlaub, and Of counsel attorneys, David Kotzian*, Donald Gasiorek *, Raymond Carey *, and Paul Hines *2024 Michigan Super Lawyers Honorees
