Divorce ADR

What is Pre-Filing Divorce ADR in Michigan?

Pre-filing divorce ADR refers to the resolution of divorce-related disputes before a formal divorce petition is filed with the court. In Michigan, ADR encompasses several processes, the most common of which are mediation, arbitration, and collaborative divorce. These methods can be used to settle issues such as asset division, child custody, alimony, and support, before litigation begins.

The goal of pre-filing ADR is to allow couples to reach mutually agreeable solutions without engaging in lengthy and costly court proceedings. By using ADR, parties can maintain greater control over the outcome, preserve relationships (especially in cases involving children), and often achieve a more timely resolution.

1. Legal Framework for Pre-Filing Divorce ADR in Michigan

a. Michigan Statutory Law and ADR

Michigan does not mandate pre-filing ADR for divorce cases, but it does encourage the use of alternative dispute resolution as part of the state's approach to family law disputes. MCL 552.9 states that the court may refer parties to mediation in divorce cases, but this applies after the case has been filed. While there is no statute requiring pre-filing ADR, many Michigan counties and family courts encourage or require mediation or other ADR processes before court intervention.

b. Michigan Court Rules and ADR

The Michigan Court Rules (MCR) provide specific guidelines for ADR processes in divorce cases. Under MCR 3.216, courts may refer parties to mediation, either voluntary or mandatory, to address child custody, parenting time, and child support disputes. These provisions primarily come into play once the divorce petition has been filed. However, many family law attorneys in Michigan encourage clients to resolve issues through ADR before filing for divorce, as this can save time, reduce conflict, and lower legal expenses.

Although MCR 3.216 applies to divorce cases once they have been initiated, the underlying philosophy of encouraging amicable resolutions often prompts attorneys to recommend ADR even before filing a divorce petition. Engaging in ADR at this stage can allow the couple to reach an agreement on major issues, such as child custody and division of assets, before litigation starts.

c. Family Law and ADR Guidelines

Several guidelines and local court rules further emphasize ADR for divorce cases. For instance, the Washtenaw County Friend of the Court encourages divorcing couples to explore mediation and ADR options before involving the court system. This approach helps reduce the backlog of cases in the court system and promotes more peaceful and cooperative resolutions.

In some cases, pre-filing ADR can be used to resolve disputes regarding property division or child custody arrangements, allowing the parties to agree on terms without the need for a formal filing. Many Michigan family law practitioners recommend that couples attempt ADR as a first step before seeking a divorce petition.

2. Case Law and Pre-Filing ADR in Michigan

While Michigan case law does not specifically mandate pre-filing ADR, Michigan courts have historically supported and reinforced the idea of ADR in family law disputes. A key case illustrating this approach is Adams v. Adams, 276 Mich. App. 704 (2007), where the Michigan Court of Appeals reinforced the value of mediation as a tool for resolving family law issues. In this case, the court emphasized the importance of alternative dispute resolution methods in family law cases, highlighting that mediation could lead to better outcomes for families and children.

Although this case did not specifically address pre-filing ADR, the court's stance on ADR as a helpful tool in divorce cases has shaped Michigan's family law landscape. In practice, attorneys in Michigan encourage clients to explore ADR methods prior to filing for divorce, especially in situations where issues like custody or asset division are particularly contentious.

Additionally, Michigan courts have upheld that mediation and collaborative divorce are often preferred approaches to resolve disputes outside of the courtroom. In re: Marriage of Turner, 182 Mich. App. 407 (1990), provided an example of the court's willingness to enforce the agreements reached through mediation as long as they align with Michigan’s public policy on family law matters.

3. Rules of Professional Conduct Considerations for Michigan Attorneys

Attorneys play an essential role in guiding clients through the divorce process, including the decision to engage in ADR. The Michigan Rules of Professional Conduct (MRPC) provide important guidance for attorneys when recommending or participating in ADR, including pre-filing divorce ADR.

a. MRPC Rule 1.2: Scope of Representation and Allocation of Authority

Under MRPC Rule 1.2, attorneys are required to communicate with their clients about all significant developments in a case, including the option of ADR. Rule 1.2 requires attorneys to respect the client’s decisions about the objectives of the representation. In the context of pre-filing divorce ADR, this means that attorneys must inform clients of their right to attempt mediation or collaborative divorce before filing the divorce petition. Attorneys must advise clients of the potential benefits and drawbacks of ADR and how it may influence the outcome of their case.

b. MRPC Rule 2.1: Advisor Role

According to MRPC Rule 2.1, attorneys are required to provide “independent professional judgment and advice” to clients. In the context of pre-filing ADR, this rule emphasizes the importance of providing clients with comprehensive advice about their options for resolving divorce issues. This includes discussing the potential for ADR as a means to resolve disputes before resorting to litigation. Attorneys must assess whether ADR would be beneficial for the client based on the complexity of the case, the level of conflict, and the nature of the issues at hand.

c. MRPC Rule 4.1: Truthfulness in Statements to Others

When engaging in ADR, attorneys must be careful to uphold their duty of honesty and integrity. Under MRPC Rule 4.1, attorneys must be truthful in statements made during negotiations or mediation. Attorneys must ensure that their clients are not misleading opposing parties or third-party neutrals, such as mediators or arbitrators, during pre-filing ADR processes. This rule ensures that ADR proceedings are conducted with transparency and honesty, fostering an environment conducive to fair negotiations.

d. MRPC Rule 5.3: Responsibilities Regarding Nonlawyer Assistance

Attorneys who refer clients to non-attorney mediators or collaborative divorce professionals must ensure that these individuals maintain high ethical standards. Under MRPC Rule 5.3, attorneys have a duty to ensure that any nonlawyer assistants (such as mediators or facilitators) in the ADR process act in accordance with ethical practices. This rule is particularly relevant for attorneys who encourage clients to engage in pre-filing divorce ADR with the assistance of a neutral third-party mediator.

4. Benefits of Pre-Filing Divorce ADR

Pre-filing ADR offers many advantages, including:

Cost-Effectiveness: Avoiding the expense of court fees and lengthy litigation.
Faster Resolution: Reaching agreements outside the courtroom can expedite the process.
Confidentiality: Unlike court proceedings, which are public, ADR can be conducted privately, preserving confidentiality.
Control Over Outcome: Parties have greater influence over the resolution rather than relying on a judge’s decision.
Preservation of Relationships: In cases involving children, ADR can help minimize conflict and preserve relationships, making post-divorce co-parenting easier.

5. Conclusion

While Michigan does not mandate pre-filing divorce ADR, it is an important tool in family law practice that allows couples to resolve their disputes before entering the court system. With the support of Michigan statutes, case law, and the ethical guidelines outlined in the Michigan Rules of Professional Conduct, attorneys can guide clients through a peaceful and cost-effective divorce process. By considering ADR options before filing, couples may achieve a more amicable divorce and minimize the emotional and financial toll of litigation.

Works Cited

Michigan Compiled Laws. "MCL 552.9 – Mediation and Alternative Dispute Resolution." Michigan Legislature, 2024, https://www.legislature.mi.gov

Michigan Court Rules. "MCR 3.216 – Mediation in Family Law Cases." Michigan Courts, 2024, https://www.courts.michigan.gov.

Adams v. Adams, 276 Mich. App. 704 (2007).

In re: Marriage of Turner, 182 Mich. App. 407 (1990).

Michigan Rules of Professional Conduct. "Rule 1.2 - Scope of Representation," State Bar of Michigan, 2024, https://www.michbar.org.