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Mediator’s Failure To Inquire About Domestic Violence Did Not Negate Divorce Settlement

Posted on Wednesday, February 19, 2020

A settlement agreement signed by the parties in this divorce action was valid and enforceable, the Michigan Court of Appeals has ruled, even though the mediator did not conduct any domestic violence screening pursuant to the Michigan court rules.

In Pohlman v Pohlman (Docket No. 344121), the plaintiff claimed the mediator in her divorce case did not follow MCR 3.216(H)(2), the domestic relations mediation court rule, because he did not inquire whether either party had a history of a “coercive or violent relationship with the other party.” As a result, the plaintiff asserted the settlement agreement that she signed, which the defendant presented to the Oakland County Circuit Court for entry, was unenforceable. Specifically, the plaintiff claimed that she suffered from a “mental vulnerability and affliction” and could not knowingly have entered into the agreement.

The plaintiff asked the trial court to grant her an evidentiary hearing regarding the validity of the settlement agreement. The trial court denied the plaintiff’s motion, finding the agreement was enforceable because the plaintiff willingly participated in mediation and entered into the agreement without duress. In making its ruling, the trial court noted that each party was represented by counsel, the domestic relations mediator was experienced, the parties were separated during the mediation process (known as “shuttle diplomacy”), and the plaintiff signed and initialed handwritten changes to the agreement, all of which favored her.

The plaintiff subsequently filed a motion for reconsideration, which the trial court denied. The plaintiff appealed.

The Court of Appeals affirmed the trial court’s ruling in a 2-1 decision, holding that any error was harmless.

The plaintiff “fails to provide any authority for the proposition that the mediator’s failure to comply with the requirements of the court rule renders the mediation and subsequent settlement terms agreement void,” the Court of Appeals said in an opinion joined by Judge Christopher M. Murray and Judge David H. Sawyer.

Judge Elizabeth L. Gleicher dissented. “In my view, the trial court was obligated to hold a hearing to determine whether [the plaintiff] was coerced into the settlement,” she wrote. “Only by evaluating the proposed evidence in light of the statute and the court rule could the trial court make an informed decision regarding whether relief is warranted.”

Noncompliance With Court Rule

On appeal, the plaintiff claimed the mediation process was “fatally flawed” because the mediator did not conduct any domestic violence screening pursuant to MCR 3.216(H)(2).

Addressing this argument, the Court of Appeals initially noted that the plaintiff first submitted an affidavit regarding domestic violence and the lack of screening at mediation to the trial court with her objection to the judgment served pursuant to the “seven-day rule” in MCR 2.602(B)(3). “But those objections can only address whether the content of the proposed order is consistent with the court’s ruling, i.e., the form of the order, and is not an independent means to challenge the underlying ruling,” the Court of Appeals explained. “As a result, the affidavit regarding domestic violence was not properly presented to the trial court. The issue could have – but was not – raised with the motion for reconsideration, but that motion was focused on the alleged coercion by plaintiff’s attorney and the mediator. Plaintiff’s affidavit regarding domestic violence was not attached to that motion.”

But even if this was the proper way to raise the issue, “as a matter of law the violation of the court rule alone was not enough to set aside the judgment,” the Court of Appeals said. “Under the plain and unambiguous language of MCR 3.216(H)(2), a mediator is required to make a reasonable inquiry regarding a coercive or violent relationship between the parties, and is required to make reasonable efforts to screen for coercion or violence between the parties throughout the mediation process.”

Here, the plaintiff attested that the mediator never inquired about any domestic violence between the parties. “Although plaintiff never came forward before or during mediation with any suggestion of the existence of domestic violence in the parties’ relationship, it is clear that the mediator did not comply with the requirements of MCR 3.216(H)(2) when he failed to inquire or make reasonable efforts to screen the parties regarding any history of domestic violence or coercion during their relationship,” the Court of Appeals observed.

The plaintiff, however, did not provide any authority for the proposition that the mediator’s failure to comply with the court rule requirements rendered void the mediation and subsequent settlement, the Court of Appeals said. Because the plaintiff did not show that she was prejudiced by the mediator’s failure to screen for domestic violence, “any noncompliance with MCR 3.216(H)(2) was harmless.”

No Duress

Next, the plaintiff argued the divorce settlement was void because she signed it under duress and did not reasonably understand it.

Contracts may, indeed, be voided on the grounds of duress, the Court of Appeals explained, likening the plaintiff’s case to Vittiglio v Vittiglio, 297 Mich App 391 (2012), where the divorce settlement was reached through mediation using “shuttle diplomacy.”

In addition, similar to the present case, the plaintiff in Vittiglio never asserted the defendant threatened her into agreeing to the settlement, the Court of Appeals said. “Therefore, the Vittiglio Court concluded that the defendant’s previous threats to the plaintiff did not affect the validity of the plaintiff’s consent to the settlement agreement, ‘particularly because of the method of mediation used in this case.’ … Plaintiff’s allegations that she was not allowed to leave and was pressured to sign the settlement terms agreement by her attorney and the mediator do not demonstrate the coercion necessary to set aside an agreement based upon duress.”

Looking to the facts of the present case, the Court of Appeals said the trial court correctly found that: 1) the plaintiff voluntarily participated in mediation; 2) the 6.5 hour mediation time period was not unusual for a divorce case; 3) the parties had an experienced mediator and counsel; 4) the mediator conducted shuttle-type mediation; and 5) the plaintiff signed and initialed the settlement terms sheet.

“These findings are based on the undisputed facts that during the entire mediation the parties were in separate rooms, and had no interaction,” the Court of Appeals wrote. “At no time did plaintiff assert that defendant coerced her into signing the settlement terms sheet at mediation. Instead, plaintiff asserted that her attorney and the mediator made her feel as if she could not leave without signing. But as noted in Vittiglio, that is not sufficient.”

The plaintiff’s argument that the defendant coerced her into signing the settlement terms sheet by “being uncooperative throughout discovery” was unpersuasive, the Court of Appeals said, “because what occurred during discovery has no impact on what pressure was placed on plaintiff at mediation.” Therefore, because there was no evidence that the plaintiff signed the agreement under duress contributed to by the defendant, the trial court “did not abuse its discretion by denying plaintiff’s motion for reconsideration and entering the judgment of divorce.”

Evidentiary Hearing Properly Denied

Lastly, the plaintiff claimed the trial court should have granted her an evidentiary hearing to determine if the settlement was void because of coercion or duress, and whether the requirements of MCR 3.216(H)(2) were satisfied.

The Court of Appeals refuted the plaintiff’s argument.

The plaintiff’s claims of duress and coercion “were based on pressure that she felt from the mediator and her attorney, rather than defendant,” the Court of Appeals stated. “This was clear in her affidavit regarding the alleged coercion that occurred at mediation. Thus, the trial court was not required to hold an evidentiary hearing because it could sufficiently decide the issue of coercion and duress on the basis of the evidence before it.”

The plaintiff’s affidavit, which was filed with her motion for reconsideration, was considered in light of what was acknowledged at a March 2018 hearing – that is, there was no evidence the defendant coerced or pressured the plaintiff into signing the settlement because shuttle-type mediation was used, the parties did not interact, the parties were each represented by counsel and an experienced mediator was used.

“In light of these undisputed facts, the court properly considered plaintiff’s affidavit against these facts to determine without an evidentiary hearing whether duress was shown,” the Court of Appeals concluded. “Therefore, the trial court did not abuse its discretion by failing to hold an evidentiary hearing.”

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