Mediator Didn’t Ask About Domestic Violence: Is Divorce Settlement Negated?
A Michigan trial court has been instructed to scrutinize whether a divorce settlement is unenforceable because the mediator in the case did not conduct the domestic violence screening required by court rule and state law.
The plaintiff in Pohlman v Pohlman argued the mediator in her divorce case did not follow MCR 3.216(H)(2) and MCL 600.1035 - the court rule and statute that require domestic relations mediators to inquire whether either party has a history of “coercive or violent relationships.” As a result, the plaintiff claimed the settlement agreement that she had signed was unenforceable.
When the plaintiff asked the Oakland County Circuit Court for an evidentiary hearing on the validity of the settlement agreement, the trial court denied the request, finding the agreement was enforceable because she willingly participated in mediation and entered into the agreement without duress. The plaintiff filed a motion for reconsideration, which the trial court denied.
The plaintiff appealed. In a 2-1 decision, the Michigan Court of Appeals upheld the validity of the settlement agreement (Docket No. 344121). Judges David H. Sawyer and Christopher M. Murray said that any trial court error was harmless. Judge Elizabeth L. Gleicher dissented, saying she would remand for an evidentiary hearing to assess whether the settlement was voluntary.
The plaintiff appealed to the Michigan Supreme Court, which granted leave. After the parties filed their supplemental briefs, the high court issued an order (Docket No. 161262) directing the Oakland County Circuit Court to conduct an evidentiary hearing.
The Michigan Supreme Court instructed: “The hearing shall focus on, and the circuit court shall make factual findings as to, the appellant’s allegation that her signature on the parties’ January 31, 2018, settlement agreement was involuntary because: (1) it was obtained under duress, and (2) it was obtained without the mandatory domestic violence screening required by MCL 600.1035(2) and (3) and MCR 3.216(H)(2). We further order the circuit court to submit a transcript of the hearing, together with its findings, to the Clerk of this Court, within 28 days of the conclusion of the hearing.”
The State Bar of Michigan Family Law Section also filed an amicus brief in the case, supporting the plaintiff’s position.
Arguments
The plaintiff presented several arguments to the Michigan Supreme Court, which persuaded the justices to remand the case to the Oakland County trial court for an evidentiary hearing.
The case involves a “substantial question” about the validity of MCL 600.1035. “Here, the mediator made no such [domestic violence] inquiry,” the plaintiff asserted. “The statute prescribes no remedy for its violation, and there is no caselaw interpreting it. This is a case of first impression.”
The Court of Appeals referenced MCL 600.1035 “only in a footnote” and, instead, solely focused on the court rule, MCR 3.216(H)(2), the plaintiff argued. “Though the [Court of Appeals] majority admits that the duties of domestic relations mediators are mandatory per the court rule, it chooses to shift the blame to the Plaintiff for failing to show prejudice and finds the lower court’s error harmless. The lower court committed clear error in ignoring the mandate of MCL 600.1035.”
The Court of Appeals improperly refused to supplement the record with the affidavit of the defendant. According to the plaintiff, this affidavit “corroborates Plaintiff’s account of the mediation, and adds the disturbing allegation of a conspiracy among the mediator and counsel for the parties to compel Appellant to accept the terms of the mediation.”
The Oakland County Circuit Court abused its discretion by denying the plaintiff an evidentiary hearing as to “whether her consent to the settlement was secured by duress and coercion, after promising a hearing when her counsel withdrew in the wake of the mediation,” the plaintiff asserted. “Subsequently the trial judge denied three written, and one oral, requests by Appellant for an evidentiary hearing, which a party in a domestic relations matter is entitled to, upon request.”
Domestic abuse “and how to prevent it from infecting domestic relations mediations involves a legal principle of major significance to the state’s jurisprudence” pursuant to MCR 7.305(B)(3), the plaintiff maintained. In addition, under MCR 7.305(B)(5), the Court of Appeals decision “is clearly erroneous and will cause material injustice.”
The State Bar Family Law Section submitted an amicus brief to the high court, agreeing with the plaintiff’s arguments. According to the section, the absence of any mandatory domestic violence screening, which is the “duty” of the mediator, “is per se material error resulting in a fatally flawed mediation process, preventing a voluntary settlement.”
The failure to screen is a “material omission” that affects the “core” of the mediation process, the voluntariness of a settlement agreement and the “equitable focus” of divorce, the Family Law Section maintained. “The harm that the plaintiff suffered was exactly the harm that the statute and court rule were intended to prevent. The trial court erred in entering the Judgment based on a tainted mediation and the Court of Appeals erred in affirming the trial court.”
Moreover, the Court of Appeals decision “sends a message to domestic relations mediators that they are not required to follow the statute or court rule on domestic violence screening, and that the court views the screening as a mere technicality and the failure to screen as harmless,” the Family Law Section argued.
“The legislature has already made the determination that domestic violence and voluntariness are linked and screening is required,” the Family Law Section asserted. “Pohlman judicially overrules the statute and court rule that sought to protect victims of domestic violence during the mediation process. If Pohlman stands, mediators and attorneys will feel free to ignore or minimize the statute and court rule concerning safety of the mediation process and the voluntariness of settlements.”
Current Status
Having been remanded, Pohlman is now in the Oakland County Circuit Court. Judge Lisa Langton is presiding over the case.
According to the Oakland County Circuit Court website, an evidentiary hearing was held in early June and an order of the findings following that hearing was entered July 7, 2021. These documents, and others, are public records and can be obtained (for a fee) through the Oakland County Circuit Court website.
UPDATE: 9/1/2021
Pursuant to the Michigan Supreme Court’s instruction, the case was remanded back to the Oakland County Circuit Court and an evidentiary hearing was held on June 7, 2021. Testimony was heard from Plaintiff (wife); defendant (husband); Phillip Smith (independent contractor for Kurt Schnelz); Mary Anne Noonan (plaintiff’s attorney); Michael Robbins (mediator); Kurt Schnelz (plaintiff’s co-counsel); and Mark Bank (defendant’s attorney). During the hearing, witness testimony provided conflicting facts but it became known that Plaintiff-Wife was not telling the truth because her current attorney, Phillip Maxwell, upheld his ethical obligations and relayed to the Court contradictory emails against plaintiff, as well as notifying the Court he has been good friends with both plaintiff and defendant for over 20 years. The Court found that Plaintiff’s testimony was “inconsistent and not truthful,” and defendant’s testimony lacked candor, even taking into consideration defendant’s sympathy toward the plaintiff.
The Court found that plaintiff’s signature to the settlement agreement was not obtained under duress. Testimony provided sufficient evidence that the plaintiff had the agreement in her possession when she signed it, she received updated copies during the course of the mediation, and the agreement was read to her verbatim by her co-counsel Schnelz.
The Court additionally found that Mr. Robbins complied with MCL 600.1035(2) and (3) and MCR 3.216(H)(2) in regard to a domestic violence screening. The attorneys all testified at the June 7 hearing that neither plaintiff nor defendant identified domestic violence as an issue, and plaintiff additionally never brought up the issue of domestic violence during participation in both the preparation of the mediation statement and the mediation process itself. Even though domestic violence was not alleged by plaintiff, Mr. Schnelz additionally testified that Mr. Robbins used an abbreviated form of questioning regarding domestic violence. Because questioning took place in regard to domestic violence, the court determined that “[Mr.] Robbins complied with his initial duties to screen for domestic violence under MCR 3.216(H)(2) and MCL 600.1035(2).” Mr. Robbins also successfully complied with ongoing obligations under MCR 3.216(H)(2) and MCL 600.1035(3) due to “his use of shuttle negotiation and the lack of direct contact between [defendant] and [plaintiff] or between either party’s counsel and the opposing party.”
