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EXHIBIT NO. 1EXHIBIT NO. 1

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF MACOMB

In re: Plan for Creation of a Specialized

Business Court Local Administrative Order # 2013-02

________________________________________/

(Rescinds Local Administrative Order #2011-5)

IT IS ORDERED:

This local administrative order is issued in accordance with MCL 600.8031 et seq. It establishes a plan for a Specialized Business Court in the Macomb County Circuit Court for the purposes outlined in MCL 600.8033(3). The Business Court has jurisdiction over business and commercial disputes as defined in MCL 600.8031(1)(c), in which the amount in controversy exceeds $25,000.

1. Judicial Resources/Services:

Judge John C. Foster has been appointed by the Michigan Supreme Court as a business court judge. His term expires April 1, 2019.

2. Cases Eligible for Assignment to the Business Court:

The jurisdiction of the Business Court is defined by MCL 600.8031 et seq., which takes precedence in the event of any contradiction with the following.

a. Cases eligible to be assigned to the Business Court are identified in MCL 600.8031(2). They are defined as business or commercial disputes, and include any of the following: i. Cases in which all of the parties are business enterprises. ii. Cases in which one or more of the parties is a business enterprise and the other

parties are its or their present or former owners, managers, shareholders, members, directors, officers, agents, employees, suppliers, or competitors, and the claims arise out of those relationships.

iii. Cases in which one of the parties is a nonprofit organization and the claims arise out of that party’s organizational structure, governance, or finances.

iv. Cases involving the sale, merger, purchase, combination, dissolution, liquidation, organizational structure, governance, or finances of a business enterprise.

b. Business or commercial disputes also include, but are not limited to, the following types of cases: i. Cases involving information technology, software, or website development,

maintenance, or hosting. ii. Cases involving the internal organization of business entities and the rights or

obligations of shareholders, partners, members, owners, officers, directors, or managers.

iii. Cases arising out of contractual agreements or other business dealings, including licensing, trade secret, intellectual property, antitrust, securities, noncompete, nonsolicitation, and confidentiality agreements if all available administrative remedies are completely exhausted, including, but not limited to, alternative dispute resolution processes prescribed in the agreements.

iv. Cases arising out of commercial transactions, including commercial bank transactions.

v. Cases arising out of business or commercial insurance policies. vi. Cases involving commercial real property.

c. Business or commercial disputes expressly exclude the following types of actions: i. Personal injury actions including, but not limited to, wrongful death and

malpractice actions. ii. Product liability actions in which any claimant is an individual. iii. Matters within the jurisdiction of the family division of circuit court.iv. Proceedings under the probate code of 1939, 1939 PA 288, MCL 710.21 to

712A.32. v. Proceedings under the estates and protected individuals code, 1998 PA 386,

MCL 700.1101 to 700.8206. vi. Criminal matters. vii. Condemnation matters. viii. Appeals from lower courts or any administrative agency. ix. Proceedings to enforce judgments of any kind. x. Landlord-tenant matters involving only residential property. xi. Land contract or mortgage foreclosure matters involving residential property. xii. Motor vehicle insurance coverage under the insurance code of 1956, 1956 PA

218, MCL 500.100 to 500.8302, except where 2 or more parties to the action are insurers as that term is defined under section 106 of the insurance code of 1956, 1956 PA 218, MCL 500.106.

xiii. Insurance coverage disputes in which an insured or an alleged insured is an individual consumer.

xiv. Employment discrimination. xv. Civil rights including, but not limited to, an action brought under any of the

following: 1) The Elliott-Larsen civil rights act, 1976 PA 453, MCL 37.2101 to 37.2804. 2) The persons with disabilities civil rights act, 1976 PA 220, MCL 37.1101

to 37.1607. 3) Chapter XXI of the Michigan penal code, 1931 PA 328, MCL 750.146 to

750.148. xvi. Wrongful discharge, except for actions involving corporate officers or directors.

xvii. Worker's compensation claims under the worker's disability compensation act, 1969 PA 317, MCL 418.101 to 418.941.

3. Judicial Review of Pleadings: a. A judge assigned to the Business Court shall review all pleadings in which a party has

filed the required notice of eligibility for assignment to the Business Court under section 8(a). Cases that are excluded by MCL 600.8031(3) may be assigned to the Business Court if the assigned judge determines that it meets the statutory requirements of MCL 600.8035(3). Upon motion of a party, the Chief Judge of the Judicial Circuit may review and determine assignments under MCL 600.8035(7) to the business court docket. The ruling of the Chief Judge under this section is not appealable.

b. Any party in a case not assigned to the Business Court who believes in good faith that the case falls within the jurisdiction of the Business Court may make a motion to the judge to whom the case is assigned to have it reassigned to the Business Court.

c. Any judge of this Court may sua sponte determine that, or request briefing from the parties on whether, a case before the judge should be transferred to the Business Court.

4. Case Assignment to Judges in the Business Court

a. In the event that more than one business court judge is appointed, cases shall be assigned to a business court judge by blind draw, pursuant to the Court’s case assignment local administrative order.

b. A case assigned to a business court judge may be reassigned by blind draw to another judge if the action ceases to include a business or commercial dispute.

c. A case that does not initially include a business or commercial dispute but that subsequently includes a business or commercial dispute as a result of a cross-claim, counterclaim, third-party complaint, amendment, or any other modification of the action, shall be reassigned to a business court judge.

5. Docket Management:

The Court will issue a scheduling order pursuant to MCR 2.401(B)(2) when a case is assigned to the Business Court. Unless otherwise directed by the Court, the scheduling order will contain the following provisions:

a. Initial Court Conference. The Business Court Judge will issue notice of an initial conference with counsel (clients attending upon request) and unrepresented parties, to address the following matters: i. Whether the case is properly assigned to the Business Court. ii. Whether ADR is suitable and, if so, when and what type(s) should be employed.iii. Issues that are ready for resolution by the Court.

iv. Whether a meeting with the judge attended by the attorneys’ clients would be appropriate.

v. Schedule for the litigation. vi. Discovery issues, including the staging of discovery as appropriate, and the

necessity for any protective orders. vii. When counsel will report back to the Court regarding progress on resolving or

litigating the case, including the development of any ADR strategies. viii. Whether parties will consent to an expedited motion hearing schedule (which

the Court may order on its own initiative pursuant to MCR 2.119). ix. Prior Business Court decisions relevant to the case. x. In the event a litigant is in pro per, the Business Court Judge will discuss with the

party his/her ability to proceed in the Business Court unrepresented.

b. Joint Pretrial Report. The parties are jointly responsible for preparing and submitting a pretrial report no later than seven days before the Initial Court Conference unless otherwise directed by the Business Court Judge. Contents include: i. Description of claims and defenses, including the facts that constitute them, not

just the labels.ii. Anticipated discovery and timetable for completion. Issues with initial

disclosures (if any). iii. Case law the parties would like the judge to consider.

iv. Issues the parties believe are ready for resolution and issues the disclosing party believes are likely to be resolved by motion.

v. Prior settlement discussions and current status; existence of arbitration and mediation agreements, if any; ADR possibilities considered and proposed; and barriers to resolution, financial or otherwise.

vi. Technological capabilities of counsel to eFile, ability to participate in teleconferences or other electronic communications with the Court, and the location of clients and their ability to appear for court conferences.

vii. Whether a court-appointed expert would assist resolution.

c. Initial Pretrial Disclosures. The parties will make initial pretrial disclosures as directed by the Business Court Judge. These disclosures must include all of the following, to the extent applicable: i. The name and, if known, address and telephone number of each individual likely

to have discoverable information – along with the subjects of that information – that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.

ii. A copy, or description by category and location, of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control, and may use to support its claims or defenses, unless the use would be solely for impeachment.

iii. A computation of each category of damages claimed by the disclosing party, who must also make available for inspection and copying under MCR 2.310 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of damages suffered.

iv. For inspection and copying under MCR 2.310, any insurance agreement under which an insurer may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.

v. All other documents or disclosures, including current standard protocols, as required by the Business Court Judge at the Initial Court Conference.

d. Case Management Plan. The Business Court Judge will prepare a detailed case management plan based on the Initial Court Conference. The plan will include requirements for interim pretrial reports by counsel and unrepresented parties, and status conferences with the Court.

6. Technology:

Electronic filing and service pursuant the 16th Circuit Court’s eFiling Pilot Project, Administrative Order No. 2010-6, will be required by all parties in the Business Court. Parties unable to appear for court proceedings, or as otherwise directed by the Court, will be permitted to participate from remote locations through technological means, including the use of telephone and video conferencing. Prior to filing of motions or otherwise seeking relief, the Business Court will endeavor to be available for informal personal meetings, electronic or telephonic conferences with counsel and unrepresented parties to determine if the issues can be expeditiously and cost effectively addressed pending further Order of the Court.

7. Alternative Dispute Resolution

The parties are encouraged to explore any and all ADR options that will assist in the early resolution of the dispute. The parties are also encouraged to mutually agree on the ADR neutral(s). To assist the parties in mutually selecting appropriate neutral(s), the ADR clerk will make available a roster of ADR neutrals. The roster may include biographical information that sets forth the experience, subject matter expertise, and the rates of each neutral, and shall be maintained as a public document available to all counsel in business court cases. The parties are free to select mutually agreed upon neutral(s) who may not be listed in this roster. If the parties are unable to mutually agree on an ADR neutral mediator, and the Business Court orders mediation, the neutral will be selected from the roster as set forth in MCR 2.411(B)(3).

8. Initial Pleadings

a. Together with the filing of any initial pleading in a civil proceeding in this Court, the filer must provide a notice stating whether or not the case falls within the jurisdiction of the Business Court.

b. Parties filing emergency motions with their initial pleadings in cases falling within the jurisdiction of the Business Court have a duty to inform the Chief Judge’s chambers if the case is not automatically assigned to the Business Court Judge.

9. Opinions:

All opinions shall be e-mailed to the State Court Administrative Office for publication on an indexed website.

10. Local Administrative Staff:

The Court has provided the State Court Administrative Office with the name of a local staff person who has been designated as the primary contact for the Business Court.

This Order shall take effect immediately upon approval by the State Court Administrative Office.

Effective Date:

Date: July 31, 2013

State of Michigan6th Judicial Circuit

Business Court Administrative Order2013-03

Scope

This administrative order is issued in accordance with Michigan Court Rule 8.112(8) which allows a trial court to issue administrative orders governing internal court management. This administrative order establishes a Business Court as required by 2012 PA 333 and recommended by the State Bar of Michigan Judicial Crossroads Task Force. It sets forth the goals of the Business Court, creates the procedural mechanisms by which cases will be assigned to the Business Court, and prescribes the provisions by which the Business Court will be managed.

The 6th Circuit Court will implement a Business Court commencing on July 1, 2013 (the "Commencement Date"). The Business Court is established to create a specialized docket for the handling of business-related litigation in lieu of traditional case file management. The Court will monitor the effectiveness of the Project, and report on its progress from time to time as requested by the State Court Administrative Office or the Chief Judge of the 6th Circuit Court.

This administrative order is issued in accordance with Local Administrative Order 2011-04 Case Flow Management Plan.

Other than as expressly provided in this Local Administrative Order (the "LAO"), the procedural and substantive law otherwise applicable to cases assigned to the Business Court shall remain unaffected.

I. Case Eligibility Criteria for the Business Court

The Business Court has jurisdiction over business or commercial disputes1 in which the amount in controversy exceeds $25,000.2 The business or commercial dispute may be found in the complaint, counter-claim, cross-claim, or third-party complaint.3 Cases shall be assigned to the Business Court if all or part of the action includes a business or commercial dispute.4

Examples of disputes to be included in or excluded from the Business Court are found at MCL 600.8031(2) and (3).

II. Assignment of Cases to the Business Court

A. Cases will be assigned to the Business Court in accord with the requirements of MCR 2.112(0) and MCL 600.8031 et seq.

B. Cases identified in the initial complaint as Business Court eligible shall be assigned to the Business Court by blind draw.

1 A “Business or commercial dispute” is defined at MCL 600.8031(1)(c)2 MCL 600.8035(1) 3 MCL 600.8035(6)4 MCL 600.8035(3)

Ill. Removal of Cases from the Business Court

A. A Business Court judge may remove a case from the Business Court to the General Civil Docket if the case does not meet the statutory requirements of MCL 600.8031 et seq. or if it ceases to include a business or commercial dispute.

B. A party may file a motion requesting the chief judge to review the court's determination under Section Ill (A) and (B).

IV. The Business Court Judges & Dockets

A. Business Court Judges. The Business Court shall consist of 2 judges. A circuit judge assigned as a judge of the Business Court is assigned for a term of 6 years and may be reassigned at the expiration of the judge's term. The term of a judge of the Business Court expires on April 1, 2019, and on April 1 of every sixth year thereafter.

B. The chief judge may make a recommendation to the Supreme Court regarding the judges to be assigned to the Business Court using the following method:

1. General Civil/Criminal division judges may volunteer to serve in the Business Court. Volunteers will be recommended by seniority from the pool of available judges.

2. If fewer than 2 judges volunteer, the chief judge shall poll the General Civil/Criminal division judges to determine interest.

3. If after polling the judges there are still no volunteers, the chief judge will recommend General Civil/Criminal division judges to serve in reverse seniority order.

4. For purposes of Section IV. A.3, judges who have previously served in the Business Court, or who are currently serving in the Business Court, shall be exempted from serving in the Business Court by reverse seniority order. This provision will cease to apply if and when a vacancy exists in the Business Court and each judge has previously served in the Business Court, or is currently serving in the Business Court. In such instances a vacancy shall be filled in the manner prescribed in Section IV.A. 3 above.

5. The above methodology will be used for filling vacancies in the Business Court unless the chief judge determines that it is not in the best interest of the Business Court or other good cause exists.

C. Pending Matters. Judges assigned to the Business Court shall complete all pending civil matters (i.e., maters undecided on cases assigned to them).

D. Case Tracking. Cases assigned to the Business Court will be assigned an internal docket code identifying its assignment to the Business Court, which will be used for tracking purposes and statistical analysis.

E. Orders. If a Business Court judge before whom a case has been tried or a motion heard is disabled or absent from the place where court is held, another circuit judge assigned as a judge of the Business Court may continue to hear, determine, and sign all matters that the disabled or absent Business Court judge could have heard, determined, and signed.

V. Business Court Scheduling Order

When a case is assigned to the Business Court, the Court will issue a Business Court scheduling order pursuant to MCR 2.401(8)(2).

VI. Technology

Electronic filing pursuant to Supreme Court Administrative Order 2007-03, Revised E Filing Pilot Project in Oakland County, and all subsequent administrative orders that extend the duration of the pilot project, will be required by all parties on cases assigned to the Business Court.

Parties who are unable to appear for court proceedings in person may be permitted to participate from remote locations through video or audio conferencing. Arrangements must be made in advance with the judge of the Business Court to whom the case is assigned.

VII. Business Court Opinions; User Evaluation; Reporting

A. Opinions. Each Business Court Judge may issue written opinions on material rulings which may be of interest to the bench, bar and public. All written opinions shall be transmitted to the SCAO within 7 days after the court enters the opinion.

B. Reporting. The Business Court shall maintain data as required by the SCAO, and shall provide data to the SCAO upon request.

Local Administrative Order 2012-03, entitled Specialized Business Docket, is rescinded.

IT IS SO ORDERED.

EXHIBIT NO. 3

EXHIBIT NO. 3

SOME EFFECTIVE ADR OPTIONS FOR BUSINESS DISPUTES

KEY FEATURES

1. MEDIATION

(A). Early Stage Facilitative Mediation: Usually occurs before or shortly after suit is filed. Parties select a third party neutral who facilitates communication and

encourages parties to hear each others ideas. May lead to faster resolution; more creative options possible. Opportunity early on to clarify and identify issues and needed

information; may also eliminate parties misconceptions about facts, law and other party.

(B). Late Stage Facilitative Mediation: Usually done when discovery is complete and close to trial date. Both parties may be more emotionally ready. Generally more expensive. Parties may have better feel for risks and costs.

(C). Late Stage Evaluative Mediation: Usually done when discovery is complete and close to trial date. Here the mediator does more than just facilitate by suggesting or

providing the mediator’s proposed settlement terms. Opportunity to avoid a trial.

2. ARBITRATION

Final and binding decision by 1 or 3 neutral(s) selected by the parties with or without subject matter expertise and experience.

Confidential – less formal – parties can specifically tailor the proceedings by agreement (i.e. limit discovery, etc.).

Very limited ability to appeal. Can convert award into a judgment. Depending upon the terms of the arbitration agreement, the arbitrator(s)

can award any remedy including interest, costs and attorney fees. Potentially less costly and quicker than a trial. Rules of evidence relaxed. Motions for summary disposition rarely granted. Michigan’s Revised Uniform Arbitration Act- contains “user friendly”

provisions to streamline the arbitration process.

3. MEDIATION/ARBITRATION

OR ARBITRATION/MEDIATION

WITH VARIATIONS

Mediation/Arbitration Same . Mediation first with a neutral mediator and if no resolution at the mediation then arbitration with same neutral as the arbitrator.

Mediation/Arbitration Different . Mediation first and then arbitration but with different neutral(s) selected before the process begins.

Mediation/Arbitration Recommendation . Mediation/Arbitration with mediator submitting a recommendation to the parties which, if not accepted, is provided to the arbitrator before the arbitration starts. Recommendation is non-binding.

Mediation/Arbitration Opt-Out. After mediation, each party can decide to pick another neutral to be the arbitrator.

Mediation-Arbitration High-Low . During mediation, the parties agree that whatever the decision of the arbitrator, the amount defendant will pay

will not exceed a certain “high” and the amount plaintiff will receive cannot go below an agreed upon “low”.

Arbitration-Mediation . Where the process is reversed and mediation follows the arbitration. The arbitrator “seals” the award only to be opened if mediation does not result in a full settlement.

4. MINI-TRIAL TO PARTY REPRESENTATIVES

A panel of 3 individuals hears an abbreviated presentation in a format agreed upon by the parties and then meet and render an evaluation of the case or move directly into a mediation.

Panel may consist of a neutral (who may then act as the mediator) and high level representatives of each party with authority to resolve the dispute.

Educates the decision makers of both strengths and weaknesses. Parties can jointly or independently receive an evaluation from the neutral

if desired. Provides client with opportunity to present its case and receive feedback. Parties may opt for a jury that is presided over by a neutral serving as the

judge. The jury’s decision is not binding. Permits parties to evaluate a jury’s reaction to strengths and weaknesses. Parties receive their “day in court” without expense of full trial and can then move into a standard mediation.

5. EARLY NEUTRAL

FACT FINDER FOR

COMPLEX CASES

Shortly after suit is filed the parties select a neutral with subject matter expertise to evaluate technical issues, facilitate discovery disputes, meet with the parties and their experts as appropriate, and generates a report/recommendation. Parties may agree to use or not use neutral’s report as evidence in a trial or other ADR process. Provides early evaluation to the parties of strengths and weaknesses. Parties have flexibility to tailor scope of neutral’s involvement.

6. EXPERT HEARING

A third party neutral presides over the hearing or battle of the experts. The experts each give testimony and may be cross-examined by the opposing expert, attorney or neutral. Objective is to provide clarity and narrow factual, technical and legal issues. The neutral can often act as a mediator after the hot tubbing exercise. Permits parties to identify potential risks and evaluate credibility/persuasiveness of experts.

7. SPECIAL CASE EVALUATION

Parties select a three person case evaluation panel with subject matter expertise and experience. The panel meets with the attorneys (with clients present if agreed upon) and issues an evaluation. If conducted under MCR 2.403 there may be sanctions for rejection. The parties may agree to a Special Case Evaluation independent of MCR 2.403.

PREPARED BY THE OCBA ADR COMMITTEE

AGREEMENT to CONFIDENTIALLY MEDIATE

By signing this Agreement the Parties have agreed to participate in a confidential mediation of their dispute conducted by ______________________ (the “Mediator”) in accordance with the following terms:

Scope of Mediation

The Parties would like to fully resolve their dispute through mediation. All issues relating to the dispute will be explored and discussed by the Mediator and the Parties in a professional manner.

Mediation Process and the Obligations of the Parties, Counsel and the Mediator

The purpose of this mediation is to encourage the parties to explore and fully discuss the differences between them and to reach a mutually agreeable resolution on the issues that divide them. The Mediator has no decision-making authority and will not impose an outcome on any Party. The Parties retain complete control over whether or not to accept the terms of any proposed resolution and, therefore, the Mediator makes no representation that the Parties will reach an agreement on any of the issues, disputes or claims discussed during the mediation. The Mediator’s role is to facilitate the communications that may lead to a mutually satisfactory agreement. During the course of the mediation, the Mediator is authorized to conduct joint and separate communications with the Parties to encourage such communications. The Parties are encouraged to discuss any concerns, issues or interests candidly with the Mediator during confidential separate communications.

The Mediator is a neutral third party who may not, and will not, act as an advocate for or give legal advice to any Party. No professional-client or fiduciary relationship exists between any Party and the Mediator and nothing said by the Mediator constitutes legal advice. The Parties have been advised to seek and rely upon the legal advice of counsel.

Unless ordered by a court, participation in this mediation process is voluntary and anyone can terminate this process at any time. If any Party or their counsel is contemplating terminating the mediation or departing the premises, they are requested to first discuss the matter with the Mediator.

The Mediator’s conduct is governed by Mediator Standards of Conduct promulgated by the Michigan Supreme Court Administrative Office and those Standards are incorporated into this Agreement. The parties have reviewed these Standards. If a copy of the Standards are desired a copy will be provided upon request.

The Mediator may assist the Parties and counsel with the terms of the settlement reached but counsel and the Parties will be solely responsible for drafting the finalized settlement that is achieved as the result of the mediation. The Parties are encouraged to discuss and fully review the terms of the settlement that is reached with counsel.

Confidential Nature of Mediation

Confidentiality is extremely important to foster the communications necessary to reach a resolution of the Parties’ dispute. In order to encourage full settlement of all matters underlying the dispute, the Parties and the Mediator agree that all communications made in connection with this mediation are confidential.

The Mediator agrees not to disclose any communication received during separate confidential sessions with a Party to any other Party without the express permission of the Party making the disclosure. No communications made during the mediation are subject to discovery, admissible in any subsequent proceedings, and may not be disclosed to anyone other than mediation participants, except as provided in MCR 2.412(D) and the Code of Professional Responsibility. The provisions of MCR 2.412(D) have been reviewed and discussed with counsel.

This mediation will be considered settlement negotiations for the purpose of all state and federal rules and statutes protecting disclosures made from later discovery or use as evidence in any subsequent arbitral, judicial, or other proceeding.

All statements, discussions or documents made or prepared during the course of the mediation (including those made during any pre-mediation conference calls and any post mediation follow-up discussions involving the dispute) are privileged and confidential, made without prejudice to any party’s legal position, and are non-discoverable and inadmissible for any purpose in any arbitral, judicial, or other proceeding except as specifically provided in MCR 2.412(D) or as required by the Code of Professional Responsibility.

If the mediation ends in a written settlement agreement or with the Parties coming to an impasse, unless there is an agreement reached to the contrary the Mediator will destroy all notes taken during the course of the mediation and all materials provided to the Mediator. In no event, however, will the Mediator retain any such notes longer than one year from the conclusion of the mediation. The Parties understand that the Mediator will not voluntarily testify on behalf of a Party in any proceeding, nor voluntarily produce any documents or information in the Mediator’s possession. The Parties agree that no aspect of the mediation shall be relied upon or introduced as evidence in any arbitral, judicial or other proceeding.

The Parties agree that a breach of the confidentiality terms of this Agreement would cause irreparable injury and that monetary damages would be an inadequate remedy since the Parties and the Mediator are relying upon this Agreement to confidentially disclose sensitive and protected information. The Parties agree and stipulate that any Party to this Agreement or the Mediator may obtain an injunction to prevent disclosure of any such confidential information in violation of this Agreement.

Evidence that the parties have entered into a written settlement agreement during the course of the mediation may be disclosed and admissible to the extent necessary to enforce the settlement.

4. Mediator's Compensation

The Parties, Counsel and the Mediator have already agreed on the terms of the Mediator’s compensation in a separately executed retention agreement, the terms of which are incorporated into this Agreement.

5. Conflict of Interest

The Parties and their counsel have disclosed to the Mediator, and the Mediator has disclosed to each of them, all matters that each reasonably believes require disclosure pursuant to MCR 2.411 and the Mediator Standards of Conduct. The Mediator has fully discussed during the pre-mediation conference call those facts and circumstances that might give rise to any actual or potential conflicts of interest. The Mediator believes that any actual or potential conflict discussed with Counsel will not impact the

neutrality of the Mediator. To the extent any actual or potential conflict has been discussed, the Parties waive the conflicts and potential conflicts disclosed. If any Party believes the Mediator is not impartial, that Party should not sign this agreement and immediately terminate any involvement in this mediation.

During the course of the Mediation if any Party or the Mediator becomes aware of any facts or circumstances that may lead to a conflict of interest on the part of the Mediator, the Parties and the Mediator will immediately disclose those facts or circumstances. Once disclosed the Parties or the Mediator will determine if this mediation process should immediately terminate.

6. Dispute Resolution

Any dispute arising between the Mediator and any Party or Counsel shall be resolved through mediation, using a mediator chosen by all parties to that dispute.

Thank you for agreeing to participate in this confidential mediation.

Dated: ___________________

By: ________________________________ By: ________________________________

(Party Signature) (Party Signature)

___________________________________ __________________________________

(Party Name) (Party Name)

By: ________________________________ By: ________________________________

(Party Signature) (Party Signature)

___________________________________ __________________________________

(Party Name) (Party Name)

By: ________________________________ By: _______________________________

(Attorney Signature) (Attorney Signature)

___________________________________ __________________________________

(Party Representing) (Party Representing)

By: ________________________________ By: _______________________________

(Attorney Signature) (Attorney Signature)

___________________________________ __________________________________

(Party Representing) (Party Representing)

EXHIBIT NO. 5

EXHIBIT NO. 5

MICHIGAN MEDIATOR STANDARDS OF CONDUCT

OFFICE OF DISPUTE RESOLUTION

State Court Administrative Office

Michigan Supreme Court

Effective February 1, 2013

Michigan Standards of Conduct for Mediators

Applicability.

These Standards of Conduct apply to cases managed under the Michigan Court Rules.Failure to comply with an obligation or prohibition imposed by a standard is a basis for removal of a mediator from a court roster under MCR 2.411(E)(4) and MCR 3.216(F)(4). The standards do not give rise to a cause of action for enforcement of a rule or for damages caused by failure to comply with an obligation or prohibition imposed by a standard. In a civil action, the admissibility of the standards is governed by the Michigan Rules of Evidence or other provisions of law.

Standard I. Self-Determination

A. A mediator shall conduct mediation based on the principle of party self-determination.Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome, including mediator selection, process design, and participating in or terminating the process.

1. Although party self-determination for process design is a fundamental principle of mediation practice, a mediator may need to balance party self-determination with a mediator’s duty to conduct a quality process in accordance with these Standards.

2. A mediator cannot personally ensure that each party has made free and informed choices to reach particular decisions, but, where appropriate, a mediator should make the parties aware of the importance of consulting other professionals to help them make informed choices.

3. A mediator shall continuously assess the capacity of the parties to mediate. A mediator shall make appropriate modifications to the process if there is concern about a party’s ability to make voluntary and uncoerced decisions. A mediator shall terminate the mediation process when a mediator believes a party cannot effectively participate.

B. A mediator’s commitment is to the parties and the mediation process. A mediator shall not undermine party self-determination for reasons such as obtaining higher settlement rates, ego satisfaction, increased fees, or outside pressures from court personnel, program administrators, provider organizations, or the media.

Standard II. Impartiality

A. A mediator shall conduct mediation in an impartial manner and avoid conduct that gives the appearance of partiality. “Impartial manner” means freedom from favoritism, bias, or prejudice in word, action or appearance, and includes a commitment to assist all participants.

1. A mediator should act with impartiality and without prejudice based on any participant’s personal characteristics, background, values and beliefs, or performance during mediation.

2. A mediator should neither give nor accept a gift, favor, loan, or other item of value that raises a question as to the mediator’s actual or perceived impartiality.

B. A mediator shall decline a mediation or withdraw from mediation if the mediator cannot conduct it in an impartial manner, regardless of the express agreement of the parties.

Standard III. Conflicts of Interest

A. A mediator should avoid a conflict of interest or the appearance of a conflict of interest both during and after mediation. A conflict of interest is a dealing or relationship that could reasonably be viewed as creating an impression of possible bias or as raising a question about the impartiality or self-interest on the part of the mediator.

B. A mediator shall make a reasonable inquiry to determine whether there are any facts that a reasonable individual would consider likely to create a potential or actual conflict of interest for a mediator. The duty to make reasonable inquiry is a continuing duty during the mediation process.

C. A mediator shall promptly disclose conflicts of interest and grounds of bias or partiality reasonably known to the mediator. A mediator should resolve all doubts in favor of disclosure. Where possible, such disclosure should be made early in the mediation process and in time to allow the participants to select an alternate mediator. The duty to disclose is a continuing duty during the mediation process.

D. After disclosure, the mediator shall decline to mediate unless all parties choose to retain the mediator. If all parties agree to mediate after being informed of conflicts, the mediator may proceed with the mediation.

E. If a mediator’s conflict of interest could be reasonably viewed as undermining the integrity of the mediation process, a mediator shall withdraw from or decline to proceed with the mediation regardless of the express agreement of the parties to the contrary.

F. A mediator shall not establish another relationship with any of the participants during the mediation process that would raise reasonable questions about the integrity of the mediation process, or impartiality of the mediator, without the consent of all parties.

G. In considering whether establishing a personal or another professional relationship with any of the participants after the conclusion of the mediation process might create a perceived or actual conflict of interest, the mediator should consider factors such as time elapsed since the mediation, consent of the parties, the nature of the relationship established, and services offered.

H. A mediator shall not use information about participants obtained in mediation for personal gain or advantage.

Standard IV. Mediator Competence

A. A mediator should be qualified by training, education, or experience to undertake a mediation. A mediator should make information regarding the mediator’s training, education, experience, and approach to conducting mediation available to the parties.

B. If a mediator cannot conduct the mediation competently, the mediator shall advise the parties as soon as is practicable and take appropriate steps to address the situation, including, but not limited to, requesting appropriate assistance or withdrawing.

C. If a mediator’s ability to conduct mediation is impaired by drugs, alcohol, medication, or otherwise, the mediator shall not conduct the mediation.

D. A mediator should attend educational and training programs, and engage in self- assessment and peer consultation to maintain and enhance the mediator’s knowledge and skills related to mediation.

Standard V. Confidentiality

A. Consistent with MCR 2.412, a mediator shall maintain the confidentiality of information acquired by the mediator in the mediation process.

1. As soon as practicable and as necessary throughout the mediation process, the mediator should:a. inform the participants of the mediator’s obligations regarding confidentiality;b. discuss with the parties their expectations of confidentiality; andc. discuss confidentiality of private sessions with parties or participants prior to

those sessions occurring.2. The mediator should include a statement concerning the obligations of confidentiality in a

written agreement to mediate.

B. If ordered or requested to testify or to produce documents, a mediator shall promptly inform the parties or their counsel. The mediator should consider confidentiality obligations in determining how to respond.

C. If a mediator participates in teaching, research, or evaluation of mediation, the mediator should protect the anonymity of the parties and abide by the obligations and agreements regarding confidentiality.

D. If a mediator, as authorized by law, court rule, or professional code of ethics, reveals information acquired in the mediation process, the mediator should consider the safety of persons at risk of physical harm by the release.

Standard VI. Safety of Mediation

A. Consistent with applicable statutes, court rules, and protocols, reasonable efforts shall be made throughout the mediation process to screen for the presence of an impediment that would make mediation physically or emotionally unsafe for any participant, or that would impede the achievement of a voluntary and safe resolution of issues. Examples of impediments to the mediation process include: domestic abuse; neglect or abuse of a child; status as a protected individual or vulnerable adult; mental illness or other mental impairment; and inability to understand or communicate in the language in which mediation will be conducted.

1. In general, “reasonable efforts” may include meeting separately with the parties prior to a joint session or administering screening tools.

2. In domestic relations cases, “reasonable efforts” should include meeting separately with the parties prior to a joint session and administering the “Mediator Screening Protocol” for domestic violence, published by the State Court Administrative Office.

3. If an impediment to mediation exists and cannot be overcome by accommodations that specifically mitigate it, the mediation process should not be continued unless:a. After being provided with information about the mediation process, a party at

risk freely requests mediation or gives informed consent to it;b. The mediator has training, knowledge, or experience to address the impediment;c. The mediator has discussed with the party at risk whether an attorney, advocate,

or other support person should attend the mediation; and

d. The mediator has assessed that a party can determine and safely convey and advocate for his or her needs and interests without coercion, fear of violence, or other repercussions or consequences that would put the party at risk.

B. Where it appears that minor children or vulnerable adults may be affected by an agreement, a mediator should encourage participants to consider their safety.

Standard VII. Quality of the Process

A mediator shall conduct the mediation in a manner that protects the quality of the mediation process.

A. Process: A mediator shall conduct mediation in accordance with these Standards and in a manner that promotes diligence, timeliness, safety, presence of the appropriate participants, party participation, procedural fairness, party competency, and mutual respect among all participants.

1. Diligence and timeliness. A mediator shall mediate in a diligent and timely manner.a. A mediator should agree to mediate only when the mediator can commit the

attention essential to an effective mediation.b. A mediator should accept cases only when the mediator can satisfy the

reasonable expectations of the parties concerning the timing of mediation.2. Participants and participation. A mediator shall facilitate the presence of the appropriate

participants and their understanding of the mediation process, continuously assess the parties’ capacity to mediate, and structure the mediation process to facilitate the parties’ ability to make decisions.a. Subject to the provisions for accommodation in Standard VI and unless otherwise

ordered by the court, the presence or absence of persons at a mediation should be determined by the parties and the mediator.

b. Mediation should be conducted pursuant to a written agreement to mediate that includes the mediator’s fee, a description of the process, the role of the mediator, and the extent of confidentiality.

c. If a party appears unable to understand or communicate in the language in which mediation will be conducted, or appears to have difficulty comprehending the process, issues, or settlement options, or appears to have difficulty participating in mediation, the mediator should explore the circumstances and potential accommodations, modifications or adjustments that would make possible the party’s capacity to comprehend, participate, and exercise self-determination. If the mediator determines that a party does not have the capacity to mediate even with accommodations, modifications or adjustments, the mediator shall not continue the mediation process.

3. Procedural fairness. A mediator shall conduct mediation with procedural fairness.a. The mediator should provide participants with an overview of the process and its

purpose, including distinguishing it from other processes, the consensual nature of mediation, the role of the mediator as an impartial facilitator who cannot impose or force settlement, the use of joint and separate sessions, and the extent of confidentiality.

b. A mediator who has an obligation or policy to report suspected abuse or neglect of children or vulnerable adults should inform the participants of the obligation or policy to report at the first contact.

c. The mediator should facilitate the acquisition, development, and disclosure of information to promote parties’ informed decision-making.

d. A mediator shall not knowingly misrepresent any material fact or circumstance in mediation.

e. Where appropriate, the mediator should recommend, that each party obtain independent legal advice before concluding an agreement.

4. Appropriateness of mediation. A mediator shall suspend or terminate the mediation process when the mediator reasonably believes that a participant is unsafe or unable to effectively participate in mediation or for other compelling reasons.a. If a mediator believes that mediation is being used to further illegal or criminal

conduct, a mediator should take appropriate steps including, if necessary, postponing a mediation session, withdrawing from, or terminating the mediation.

b. If the mediator suspends or terminates the mediation, the mediator should take reasonable steps to minimize danger, prejudice, or inconvenience to the parties or others that may result.

B. Role of the mediator: A mediator shall facilitate communication between the parties, assist in identifying issues, and help explore solutions to promote a mutually acceptable agreement. A mediator shall remain neutral as to terms of a settlement.

1. A mediator should not simultaneously act in the role of any other profession while mediating. Acting in the role of another profession before or after mediation may also pose a conflict of interest or affect the impartiality of a mediator.

2. A lawyer serving as a mediator shall inform unrepresented parties that the mediator is not representing them. When the lawyer serving as mediator knows or reasonably should know that a party does not understand the role of the mediator in the matter, the mediator shall explain the difference between the role of a mediator and a lawyer’s role in representing a client.

3. A mediator should inform the participants that they may obtain independent advice from other professionals.

4. A mediator may provide information that the mediator is qualified by training or experience to provide if the mediator can do so consistent with these Standards.

5. Where appropriate, a mediator may recommend that parties consider other dispute resolution processes.

6. A mediator may undertake an additional dispute resolution role in the same matter, if the mediator:a. informs the parties of the implications of the change in process;b. receives the informed consent of the parties; andc. can do so consistent with these Standards.

7. A mediator shall not conduct a dispute resolution procedure other than mediation but label it mediation in an effort to gain the protection of rules, statutes, or other governing authorities pertaining to mediation.

Standard VIII. Advertising and Solicitation

A. A mediator shall be truthful and not misleading when advertising, soliciting, or otherwise communicating the mediator’s qualifications, experience, services, and fees. A mediator shall not guarantee outcomes.B. A mediator should not claim to meet the mediator qualifications of a governmental entity or private organization unless that entity or organization has a recognized procedure for qualifying mediators and it grants such status to the mediator.

C. A mediator shall not use the names of persons served, without their permission, in promotional materials or other forms of communication.

Standard IX. Fees and Other Charges

A. A mediator shall provide each party or each party’s representative information about mediation fees, expenses, and any other actual or potential charges that may be incurred in connection with a mediation.

1. If a mediator charges fees, the mediator should develop them in light of all relevant factors, including the type and complexity of the matter, the qualifications of the mediator, and the time required.

2. A mediator should provide fee information early in the mediation process.3. A mediator’s fee arrangement should be in writing.

B. A mediator shall not charge or accept fees in a manner that impairs or may appear to impair a mediator’s impartiality.

1. A mediator shall not enter into a fee agreement that is contingent upon the result of the mediation or amount of the settlement.

2. A mediator may accept unequal fee payments from the parties unless the fee arrangement would adversely impact the mediator’s ability to conduct a mediation in an impartial manner.

Standard X. Advancement of Mediation Practice

A. A mediator should act in a manner that advances the practice of mediation. A mediator promotes this standard by:

1. Fostering diversity within the field of mediation.2. Striving to make mediation accessible to those who elect to use it, including providing

services at a reduced rate or on a pro bono basis, as appropriate.3. Participating in research when given the opportunity, including obtaining participant

feedback, when appropriate.4. Participating in outreach and education efforts to assist the public in developing an

improved understanding of, and appreciation for, mediation.5. Assisting mediators through training, mentoring, and networking.6. Participating in programs of self-assessment and peer consultation.

B. A mediator should demonstrate respect for differing points of view within the field, seek to learn from other mediators, and work together with others to improve the profession and better serve people in conflict.

-- SCAO --

STATE OF MICHIGAN

IN THE 16TH JUDICIAL CIRCUIT FOR THE COUNTY OF MACOMB

In re: Adoption of ADR Plan Local Administrative Order #2014-15

(Rescinds Local Administrative Order 2004-7)

IT IS ORDERED:

This Administrative Order is issued in accordance with MCR 2.410, Alternative Dispute Resolution, and MCR 3.216, Domestic Relations Mediation. Case evaluation is discussed separately in LAO 2014-16. The purpose of this Order is to adopt and encourage appropriate use of the Local Alternative Dispute Resolution Plan in the Macomb County Circuit Court. In adopting this Plan, it is the expectation of the Court that all counsel will discharge their ethical responsibility to discuss and explore ADR options with their clients. Pursuant to MCR 2.410 and MCR 3.216, the Court, after consultation and upon the stipulation of the parties, may order other alternative dispute processes than those specifically provided for in this Order.

A. ADR ClerkThe ADR Clerk is the Alternative Dispute Resolution Clerk - Senior.

B. MediationThis section covers alternative dispute resolution (ADR) in the Macomb County Circuit Court. Macomb County Circuit Court mediators also mediate cases selected and referred by the Macomb County District Courts which desire to participate .

1. List of Mediators - For cases referred to Mediation under MCR 2.411 and/or MCR 3.216, the ADR Clerk shall maintain separate lists of general civil mediators and domestic relations mediators, qualified under this ADR Plan, available to this Court. The ADR Clerk shall maintain a list of approved mediators which shall be publicly available during business hours in the ADR office (Circuit Court Administration).

a. Recruitment - Mediators will be recruited by publishing notice of the opportunity to apply to be a mediator, posting information in the Court buildings and posting information on the Court's webpage.

b. Qualifications -Mediators must meet or exceed the minimum qualifications of MCR 2.41 l (F) (civil cases) and/or MCR 3.216(G) (domestic cases) or the minimum training standards promulgated by the Michigan State Court Administrative Office.

c. Applicationi. An application form will be made available to those who wish to apply

at the office of the ADR Clerk, on the Court's webpage and at the Macomb County Bar Association Office.

ii. A person or committee designated by the Chief Judge shall review applications at least annually. Persons who qualify will be added to the

list of qualified mediators maintained by the ADR Clerk. Applications of approved mediators may also be reviewed at the ADR Clerk's office.

iii. Applicants not placed on the mediator list may appeal, in writing, to the Chief Judge within thirty (30) days after notice of the decision is mailed to the applicant. There will be no oral argument. The Chief Judge will inform the applicant of the decision in writing.

d. Removal - Mediators who demonstrate incompetency, bias, made themselves consistently unavailable to serve as a mediator or show other just cause may be removed from the list. A mediator who is removed from a mediator list may appeal, in writing, to the Chief Judge within thirty (30) days after notice of the decision is mailed to the mediator. There will be no oral argument. The Chief Judge will inform the mediator of the decision in writing.

2. Assignment

a. In the event the Court orders the parties to engage in mediation, the parties are encouraged to agree on the mediator. If the parties are unable to agree on the mediator, a mediator will be assigned cases in a random or rotating manner that assures as nearly as possible that each mediator is assigned approximately the same number of cases over a period of time. If a substitute mediator is assigned, a similar assignment procedure will be used to select the substitute. Upon request and stipulation in writing or on the record, a judge ordering a case into mediation may recommend a specific mediator from the approved list who the judge believes is suited to the type and nature of the case.

b. When domestic relations cases are being considered for mediation, judges will screen for cases which are not appropriate for mediation pursuant to MCR 3.216(0)(3) prior to referral. Mediators shall screen cases under this rule as part of the mediation process. SCAO domestic violence and child abuse and neglect screening protocols will be disseminated and used. Training materials from the Michigan Judicial Institute will be utilized when available and appropriate.

B. Business Court -ADR Neutrals.

1. To assist the parties in mutually selecting appropriate neutral(s), the ADR Clerk will make available to the parties in Business Court cases a roster of ADR neutrals. The roster may include biographical information that sets forth the experience, subject matter expertise, and rates of each neutral, and shall be maintained as a public document available to all counsel in Business Court cases.

2. An application form for Business Court ADR neutrals will be made available to those who wish to apply at the office of the ADR Clerk, on the Business Court's webpage and at the Macomb County Bar Association Office.

a. The Business Court Judge will approve applicants for the neutral lists based on the following criteria:i. The applicant must have been a practicing lawyer for at least 5

years and be a member in good standing of the State Bar of Michigan.

ii. The applicant must demonstrate an active practice in the designated business law area for at least the past three years.

b. Applicants not placed on the Business Court ADR neutral list may appeal, in writing, to the Chief Judge within thirty (30) days after notice of the decision is mailed to the applicant. There will be no oral argument. The Chief Judge will inform the applicant of the decision in writing.

c. Removal - Business Court ADR neutrals who demonstrate incompetency, bias, made themselves consistently unavailable to serve as a neutral or show other just cause may be removed from the list. A neutral who is removed from a list may appeal, in writing, to the Chief Judge within thirty (30) days after notice of the decision is mailed to the neutral. There will be no oral argument. The Chief Judge will inform the neutral of the decision in writing.

3. The parties are free to select mutually agreed upon neutral that is not on the Business Court ADR neutral list. Upon request and stipulation in writing or on the record, the Business Court Judge ordering a case into mediation may recommend a specific neutral from the approved list who the judge believes is suited to the type and nature of the case. If the parties are unable to mutually agree on a mediator and the Business Court orders mediation, the mediator will be selected pursuant to MCR 2.411.

D. Information Dissemination - Written documentation shall be available from the ADR Clerk in the Macomb County Circuit Court Administration Office, the Clerk's Office, the Macomb County Bar Association Office, and the Court's webpage, which shall describe the ADR plan, process, access, and that persons ordered to ADR may object by timely motion.

E. Indigent Access to ADR

1. ADR processes will be provided at a lower cost to persons not able to pay the hourly rate of mediators on the approved list by entering into a contract with the Macomb County Dispute Resolution Program ("The Resolution Center"). For purposes of this Plan, 'low cost' means usage of The Resolution Center's fee schedule. A copy of the fee schedule is attached as Appendix A. A copy of the initial contract with The Resolution Center is attached as Appendix B. In addition, the Court will explore the provision of mediation services at a rate commensurate with the person's ability to pay.

2. Persons who are determined by the judge referring a case to mediation to be 'indigent' will be provided a court ordered ADR process without cost to the indigent person. The standards of MCR 2.002 shall be a guide in determining indigency. The judge may order another party to pay all or part of the mediation fee. If a mediator must be selected by the ADR Clerk, the Clerk shall contact The Resolution Center to conduct the mediation or, if it is unable to provide the service, shall determine whether a mediator in rotation will provide pro bono mediation. Mediators will be strongly encouraged to provide mediation services pro bono to persons unable to afford mediation.

E. Evaluation of ADR Programs

1. The Court will maintain statistics on the appointment of mediators in cases in which parties did not stipulate to their own mediator. Statistics will be compiled annually and will be made available to mediators, litigators and the public in the ADR Clerk's office.

2. The ADR Clerk shall prepare an annual report to the Chief Judge on the Court's ADR Program. The Chief Judge, ADR Clerk and designated staff shall meet to review the program. The Chief Judge may schedule meetings to review the ADR program with designated judges, staff and stakeholders, if needed.

G. Other ADR Programs

1. The use of other ADR processes is encouraged by this Court.

2. Examples of encouraged ADR methods include: Arbitration, Early Disposition Settlement Conferences, Case Evaluation, Fast Track/Expedited Jury Trials, and Status Conferences.

3. Additionally, pursuant to LAO 2006-2, this Court continues to require mediation in cases that are evaluated for less than $25,000.00 during case evaluation under MCR 2.403.

4. The Court has made available a pamphlet entitled "A Taxonomy of ADR" for consideration by the parties. This pamphlet discusses various ADR techniques and processes and the settings in which those processes might be most effective.

5. None of the provisions of this LAO are intended to inhibit or discourage the parties from seeking any other form or person for ADR the parties choose for resolution of their matter.

This Order shall be effective immediately upon approval of the State Court Administrator's Office.

John C. Foster Chief Judge16th Circuit, 42nd District, and Macomb County Probate Courts

[Date]

Privileged and Confidential Settlement Discussions

Protected by MRE 408, MCR 2.412 and the Terms of This Letter

Re: Agreement to an Early Mediation by Client A and Client B

Dear :

As you requested, this letter confirms the agreement between [Client A] and [Client B] to enter into an early facilitative mediation with _________________ (the “Mediator’) acting as the mutually agreed upon Mediator of the pending dispute (the “Dispute”). The parties have also agreed to raise all other claims and counterclaims they might have against each other so they might also become a part of the Dispute. We will both cooperate with the Mediator in the selection of a mutually acceptable mediation date at the earliest practicable time. We have agreed the mediation must take place on or before [insert date]. Should the parties fail to conduct the mediation by that date, then this agreement will terminate in accordance with the terms of this letter.

By copy of this letter, the Mediator is requested to convene a conference call (the “Conference Call”). During this Conference Call we will provide the Mediator such additional information as may be requested, establish the applicable dates for the exchange of information, and take such other steps necessary to conduct the mediation in accordance with the process agreed upon with the Mediator. We will both cooperate with the Mediator in meeting the time schedules and deadlines established during this Conference Call. The parties and their counsel also agree to sign such confidentiality and other agreements reasonably requested by the Mediator and all such agreements will be incorporated into this letter of understanding. The costs and expenses of the Mediator’s services, including any deposit or retainer, will be equally shared by the parties and timely paid in accordance with the Mediator’s requirements. Each party will be solely responsible for its own attorney fees and costs of mediation unless a judge [arbitrator] determines, should the matter not fully resolve, that such attorney fees and costs are a compensable damage under applicable law [and the arbitration agreement between the parties].

As a preliminary matter we have made the following agreements to achieve the mutual objectives of our clients:

1. Until such time as this agreement is terminated pursuant to its terms, no party will initiate litigation against the other party in any way relating to the dispute.

OR

We will request the Court [Arbitrator] to [dismiss the action without prejudice] [stay the case and suspend all further actions or proceedings otherwise required by] [the Michigan General Court Rules and the Local Court Rules] [the Arbitration Agreement and applicable rules governing the Arbitration]. The parties will also request the Court [Arbitrator] to place the [Complaint] [Demand for Arbitration] under seal pending the termination of the early mediation as provided for in this letter. In the absence of the Court [Arbitrator] entering the

[dismissal without prejudice] [stay] as set forth in Exhibit A, the early mediation agreement will immediately terminate as provided in this letter.

2. In the event of a dismissal without prejudice, the [Court] [Arbitrator] initially assigned to this matter will be re-assigned to any subsequent action arising out of the Dispute, in whole or in part, and the [Court] [Arbitrator] will agree to this re-assignment of any such complaint [Demand for Arbitration].

3. In making the limited appearance, if any, necessary to effectuate the entry of Exhibit A, no party is waiving its right to challenge the jurisdiction, venue or raise any other preliminary objection to the [Court] [Arbitrator] assigned the Dispute and the parties agree they will not assert the entry of Exhibit A, or any other actions required by this agreement, constitute a waiver of any such objection.

4. The parties and the Mediator agree that all mediation communications will be confidential in accordance with MCR 2.412 and MRE 408. We will enter into the protective agreement attached as Exhibit B to govern the confidentiality of any designated information that is exchanged in anticipation of the early mediation. Should the mediation fail to result in a complete resolution of all claims involved in the pending dispute, the parties will stipulate to the entry of Exhibit B as a Protective Order by the [Judge] [Arbitrator] with jurisdiction over any ongoing dispute. Should a party seek a modification or material change to Exhibit B for any reason, the parties agree that will be available only upon good cause shown by the moving party.

5. The parties agree to toll any applicable statute of limitations from the date of this letter until such date as the parties receive the Mediator’s declaration in writing [or the parties agree] the facilitative mediation has come to a termination or this letter of understanding is terminated in accordance with its provisions. The parties further agree they will not assert the affirmative defense of the statute of limitations that has not expired solely as a result of the agreed upon tolling period.

6. The parties agree prior to the scheduled mediation to exchange the following documentary information pursuant to and subject to the provisions of Exhibit B:

[List as appropriate]

Absent an agreement by the parties to an earlier exchange, this documentary information will be exchanged at the time agreed upon with the Mediator during the Conference Call. With regard to any additional information that either party believes will be necessary to obtain prior to the mediation, if the parties are unable to come to an agreement, the parties agree to seek the assistance of the Mediator in resolving any such issue. In resolving any such issues, the parties’ primary goal is to achieve the speediest, just and most cost efficient resolution of the Dispute.

7. The parties agree that prior to the scheduled mediation to make the following individuals available for depositions, provide a sworn statement from, or otherwise reduce their sworn testimony to writing or recording pursuant to and subject to the provisions of Exhibit B:

[List as appropriate]

Absent an agreement by the parties to an earlier exchange, this discovery will be provided in accordance with the manner and schedule agreed upon with the Mediator during the Conference Call. With regard to additional testimony that either party believes will be necessary to obtain prior to the mediation, if the parties are unable to come to an agreement, the parties agree to seek the assistance of the Mediator in resolving any such issue. In resolving any such issues, the parties’ primary goal is to achieve the speediest, just and most efficient resolution of the Dispute.

8. Should all or a portion of the Dispute proceed to [Court] [Arbitration], the resolution of any discovery disputes with the assistance of the Mediator pursuant to Paragraphs 6 or 7 will not be binding on any party in the event a Motion to Compel is filed. The parties agree the manner in which any discovery dispute was resolved during the early mediation process will be confidential and not disclosed during any subsequent [Court] [Arbitration] proceeding.

a. The parties agree the discovery specifically listed in Paragraph Nos. 6 and 7 will be admissible in any subsequent [trial] [arbitration] between the parties concerning the subject matter of the Dispute and that no party will object to the admission of such evidence (either in whole or in part) except on the basis of relevancy. Any portion(s) deemed irrelevant by the [Court] [Arbitrator] will be redacted prior to submission to the trier of fact.

9. Until the mediation is declared terminated in accordance with the terms of this letter, the nature and fact of the parties’ Dispute will be held confidential and not disclosed to any third party other than necessary witnesses and internal personal of the parties. Before any such disclosure takes place, those third parties will agree to be bound by the terms of Exhibit B.

10. Except as specifically provided in Paragraph 10, should any other third party inquire about the fact, status or nature of the Dispute, the sole response that will be given is “I am not at liberty to discuss the matter” or words to that effect.

11. Should there be a conflict of interest on the part of the Mediator disclosed during the Conference Call that is not waived by the parties after a full disclosure, or any other reason believed by the Mediator to be disqualifying, the Mediator will be relieved of any further obligations under this letter agreement and the parties will endeavor to appoint a successor Mediator. If a successor Mediator cannot be agreed upon this letter agreement will immediately terminate.

12. The parties agree that during until the parties reach a resolution or this agreement is terminated, the parties voluntarily will agree to maintain the status quo in the following regards:

[list as appropriate]

The parties agree that the terms of this paragraph cannot be construed or introduced as evidence for any reason, including but not limited to, that a party is thereby entitled to

preliminary or final injunctive relief. The parties agree that if either party has a good faith belief that the terms of this paragraph have been violated, then this agreement will be terminated upon 5 days written notice to the other party.

13. This mediation may be terminated only in accordance with the provisions of Paragraphs 1, 11 and 12, the failure to meet the mediation deadline of [date], upon the parties’ receipt of the Mediator’s written notice the mediation has been terminated or the Dispute has been resolved as a result of the mediation. However, unless otherwise agreed by the parties in writing, any such termination shall not affect the enforceability of any confidentiality or other agreements entered into as the result of the mediation or the provisions of Paragraphs 3, 4, 7 and 8, the applicable provisions of which shall continue following the termination of this letter agreement.

14. Upon the termination of the mediation in accordance with Paragraph 13, the Mediator is authorized to advise the [Court] [Arbitrator] of that fact by the submission of the approved SCAO Mediation Report to the Courts. The Mediator agrees not to disclose any other aspects or events of the mediation to the [Court] [Arbitrator] absent the express written permission of both parties.

15. Neither party will disclose any settlement discussions, offers or demands made during the mediation process to any third party unless both parties agree in writing that such a disclosure will be made confidentially to the [Court] [Arbitrator] with jurisdiction over that portion of the Dispute that has not settled.

16. If the parties are unable to completely resolve the Dispute but, as a result of the mediation, the parties do come to written agreements concerning the scope and timing of further discovery and other procedural matters, the parties agree that all such agreements may be provided to the [Court] [Arbitrator] with jurisdiction over that portion of the Dispute that has not settled and the [Court] [Arbitrator] will be requested by both parties to enforce any such agreements.

17. The terms of this letter agreement are confidential and not to be disclosed for any purpose other than to secure the enforcement of its provisions or unless the [Court] [Arbitrator] requests a copy of this letter. The parties acknowledge this letter contains the entire and exclusive agreement of the parties on the subject matter of an early mediation of the Dispute, has been mutually drafted by the parties, and may only be modified by the parties in a subsequent written agreement signed by both parties that specifically evidences an intent to modify this agreement. The parties further acknowledge that in entering into this agreement they have not relied upon any written or oral statements or representation of any party, its representatives or counsel.

18. This letter agreement will be governed and construed in accordance with Michigan law without recourse to any choice of law or conflict of law provisions otherwise required under Michigan law.

My client has already signed this letter and my signature is an acknowledgement of my acceptance. Please execute this letter along with your client and return a copy to my office and provide a copy to the Mediator at your earliest convenience.

Should you have any questions or concerns please contact me as soon as possible.

Very truly yours,

_________________________ Date: _______

Client A

_________________________ Date: _______

Client B

__________________________ Date: _______

Attorney for Client B

cc: Mediator (with attachments)

Example ADR Process Decisional Chart

Enhance Party Satisfaction1 Arbitration2 Case Evaluation

Mediation SettlementConference

Help settle all or part of the dispute Less Likely3 Less Likely Very Likely Somewhat Likely

Permit creative/business-driven solutions

Less Likely Less Likely Very Likely Less Likely

Preserve personal or business relationships


Improve satisfaction and lasting solutions


Flexibility, Control and ParticipationControl over outcome is not important; the parties need a legal decision

Very Likely Less Likely Less Likely Less Likely

Broadens the interests of the parties that are taken into consideration

Less Likely Less Likely Very Likely Somewhat Likely

Protects confidentiality Somewhat Likely

Somewhat Likely

Very Likely Very Likely

Maximize “due process” protections Very Likely Somewhat Likely

Somewhat Likely

Somewhat Likely

Improve Case ManagementHelp parties agree on future conduct/procedures during the life of the case


Streamline discovery and motions Less Likely Less Likely Very Likely Less LikelyNarrow issues and identify areas of agreement


Decrease costs Less Likely Less Likely Very Likely Less Likely

1 Depending on the needs and interests of the client, other potential characteristics to evaluate the selection of an appropriate ADR technique might include:

Improving and/or providing for an early understanding of the dispute Reducing hostility Desire a highly evaluative process to educate the parties Educating the client on the risks of the litigation Developing a strategic ADR plan that may encompass multiple ADR events during the

course of the case Evaluating the potential trial presentation of the opposing parties/experts Maximizing the potential of a positive continuing relationship (business or otherwise) Bringing finality to a narrow legal issue as early as possible and the right of appeal is not

important Narrowing the issues in dispute

2 The ADR methodologies being explored can be expanded or restricted depending upon the needs of the client and the particularities of the case. For example, Hot Tubbing, Special Master, Early Neutral Evaluation, Fast Track Jury Trial, etc. can be added to the chart and evaluated. 3 The evaluation of “Less Likely,” “Somewhat Likely,” and “Very Likely” are somewhat subjective but the grid does provide for an analysis when prepared by the counselor in assisting the client to evaluate the various characteristics and potential benefits and limitations associated with each dispute resolution technique.

[Case Caption]

SAMPLE ARBITRATION AGREEMENT

The following constitutes the agreement to arbitrate between [Plaintiff] and [Defendant], hereafter sometimes individually referred to as “party” and collectively as “parties.”

1. The parties agree to submit all claims, counterclaims and defenses currently pending in, relating to or arising out of Case No._________ before the Honorable _______________, in the ______Court for the County of __________, State of Michigan (the “Dispute”) to binding arbitration [in accordance with and subject to the provisions of the Michigan Revised Uniform Arbitration Act (“RUAA”), the Michigan Rules of Civil Procedure and the Michigan Rules of Evidence].

2. [The parties agree that _________ (the “Arbitrator”) will be the sole arbitrator to preside over the arbitration of the Dispute. The parties will send a joint communique to the Arbitrator to advise the Arbitrator of his/her selection so that an immediate conflict check can be performed. No party (or any person affiliated with a party) may have ex parte contact with the prospective arbitrator regarding or relating to the Dispute.] OR [There will be a panel of three arbitrators to decide the dispute and each arbitrator must be an attorney licensed to practice [in Michigan] with experience acting as an arbitrator. No party may nominate a person as an arbitrator with whom they have communicated about the Dispute. Upon a person’s designation as a prospective arbitrator pursuant to paragraph 3, no party (or any person affiliated with a party) may have ex parte contact with the prospective arbitrator regarding or relating to the Dispute. No party may advise an arbitrator that he or she has been designated or selected by such party.]

3. [The parties agree to exchange a list of five arbitrators ranked in order of preference and the parties will select a mutually acceptable Arbitrator from the listings exchanged unless there is a mutually satisfactory arbitrator identified on the exchanged lists.] OR [The Panel shall consist of three (3) arbitrators to be selected by the parties and all three arbitrators must be acceptable to all parties. Within fourteen (14) days after this Agreement is approved by the Court, each party shall submit a list of five (5) names of potential arbitrators with curriculum vitae of such persons. The parties will then agree upon three or as many as they can from the list. If they are unable to reach agreement on three arbitrators from the initial list, they will each submit additional names until they reach an agreement on three arbitrators. If the parties are unable to select three arbitrators in the manner described herein within 60 days after this Agreement is approved by the Court [the Court shall appoint 3 persons from the initial list to serve]; OR [each party shall select a single arbitrator from the initial list and the two selected arbitrators will select a third arbitrator {from the initial list] of their mutual agreement who shall serve as the Chair of the Panel]; OR [this Agreement shall become null and void and the Dispute shall proceed as if this Arbitration Agreement was never executed. Absent the parties’ mutual agreement, the three arbitrators shall select the Chair.] Except as provided in Paragraph 5, fees of the arbitrator[s] will be paid one-half by Plaintiff and one-half by Defendant. The arbitration shall take place at a mutually agreed upon location but absent the parties’ agreement, shall be selected by the [arbitrator] [Chair] at a location in ___________, Michigan. Any facility costs shall be borne equally by the parties. In the event an arbitrator becomes unable to serve, [the parties shall mutually agree on a replacement arbitrator [from the initial list] OR [the Court shall appoint an arbitrator from the initial list] within fourteen (14) days. [The parties agree that the

EXHIBIT NO. 9

arbitration hearing will be transcribed by a duly qualified court reporter and the costs of the court reporter will be equally shared by the parties.]

4. During the selection period described in paragraph 3, the Dispute will be stayed in the Circuit Court [however discovery may continue during the stay period as agreed upon by the parties]; and that neither party may file or prosecute any motions or other proceedings during the stay period before the Court. The parties shall endeavor to agree on the dates for completion of discovery and on hearing dates however the [arbitrator] OR [Panel, OR [the Chair, in the Panel’s discretion,] may determine all new procedural matters relating to the proceeding including discovery, protective orders and subpoenas.] [The Award of the arbitrators shall be based on the vote of the majority of the three arbitrators.] Unless otherwise agreed to by the parties in writing, the Award shall be issued within thirty (30) days after the closing of the arbitration hearings. [The Award will be reasoned containing findings of fact and conclusions of law.] The Award shall not be subject to challenge for any reason other than those specified in MCR 3.602.

5. The Arbitrator shall resolve all matters which are subject to arbitration including any award of attorneys’ fees, costs, interest and arbitration costs. This shall be a statutory arbitration with any Award to be entered as a judgment in Case No_________ and which Award and/or Judgment may be enforced in any court of competent jurisdiction.

6. The arbitration proceedings and hearings, as well as the results thereof shall be deemed confidential and shall not be transmitted to any person or entity other than: i) as mutually agreed to by the parties; ii) as authorized by the Panel; iii) as part of any pleading filed to enforce or contest any ruling or decision by the arbitrators; or iv) as otherwise required by law.

7. This Agreement constitutes the full, complete and express agreement between the parties hereto regarding the agreement to submit the Dispute to binding arbitration.

8. The parties agree that the Dispute shall be dismissed without prejudice upon the parties’ submission of a notice to the Court that agreement has been reached on the [three] arbitrator[s] as provided in paragraph 3 [and that the three arbitrators are willing to serve.] If so dismissed, the Dispute may be reinstated for purposes of entry of judgment of the Award pursuant to MCL 600.5025 if the Award has not been satisfied in full within thirty (30) days after the date of the final Award. In addition, any party may reinstate the Dispute to seek entry of orders or process to compel the attendance of third parties for depositions or as witnesses at the arbitration hearing. Once the Award has been paid in full, the dismissal will be converted to a dismissal with prejudice pursuant to stipulation between the parties. Judge _______ of the __ ___ Court shall retain the power to confirm and enforce the Award.

9. To the extent that the RUAA, Rules of Evidence or Rules of Procedure outlined in paragraph 1 above are inconsistent with any provision of this Agreement, the terms of this Agreement shall control.

10. The parties stipulate to the entry of an Order in the form attached approving this Arbitration Agreement.

11. [The parties agree that the following Orders entered by the Circuit Court will become an Order of the Arbitrators: list as appropriate].

12. [The parties agree to the following discovery during the course of the arbitration: list as appropriate. The parties may seek additional discovery for good cause shown.]

13. [The parties agree that the arbitration hearing must commence on or before _______________ and be completed on or before ______________________. The arbitrator[s] and the parties will mutually cooperate to ensure the arbitration hearing proceeds and is concluded as required by this paragraph. With the permission of the Arbitrator[s] the parties may mutually agree to modify the schedule required by this paragraph.]

14. [The parties agree that the prevailing party as determined by the Arbitrator is entitled to its reasonable costs and attorney fees of the Arbitration.]

Dated:

/s/ Plaintiff and Counsel /s/ Defendant and Counsel

MED-ARB MEDIATION AGREEMENT

1. Role of the Mediator.

The undersigned parties agree to submit the matter of ___________________ v ___________ , County Circuit Court Case No. ______, for mediation pursuant to MCR 2.411 and, if necessary, to arbitration pursuant to the agreement of the parties [attached as Exhibit A] and/or order of the court with ______________undertaking the role of the mediator and, if necessary, the role of the arbitrator. Following the termination of the mediation, the parties agree the arbitration phase will commence immediately unless otherwise agreed to by the parties. The parties understand that the role of the mediator is not to render a decision but to assist the parties in reaching a mutually voluntary resolution of the dispute, while the arbitrator's role is to issue a final and binding award on all aspects of the dispute that have not been resolved during the mediation. The provisions of the Mediator Standards of Conduct are incorporated by reference into this Agreement.

The parties accept responsibility for any settlement agreement they reach at any time during the med-arb process. No settlement agreement shall be enforceable unless it is in writing and signed by the parties involved.

2. Exchange of information, copies of cases, participant lists and use of documents.

In order to avoid surprise, not less than one (1) week prior to the mediation, or as otherwise agreed by the parties, each party shall exchange all memorandum, documents, and meditation participant lists, relating to this matter, including any documents known to the parties but within the possession or control of others, that are intended to be referenced in the mediation and which have not been previously exchanged. Additionally, each party shall submit to the mediator and exchange with the other party a short mediation summary not to exceed [ ] pages describing the facts, circumstances and legal position one week prior to the mediation, along with a separate confidential settlement position, which confidential settlement position is not to be shared with the opposing party. Documents not previously exchanged or described and participants not previously identified shall not be considered in the mediation unless by mutual agreement or if deemed necessary by the mediator. The mediator after consultation and agreement with the parties will have complete authority over all mediation procedures and may require a pre-mediation telephone conference with counsel of record prior to the mediation. Counsel shall also provide the mediator with copies of all cases, statutes or articles cited in memorandums submitted to the mediator. In the event a settlement is not arrived at as a result of the mediation, the information, documents, and summaries provided to the mediator shall be destroyed and not used nor referred in the subsequent arbitration unless introduced into evidence during the arbitration by either party.

3. Limited Questions to Be Asked of Participants.

The mediation is not a discovery deposition. However, decision makers often need to have issues or positions clarified. Therefore, the mediator may encourage decision makers to ask limited clarifying questions of the other party.

4. Settlement Authority.

All parties agree to have an individual physically present at the mediation who has full settlement authority. When such an individual is not available, other parties shall be notified at least three business days prior to the mediation.

5. Confidentiality.

The mediation is a settlement discussion. Thus, all statements by the parties, their counsel, or the mediator relating to any part of the mediation process, and any documents created for or during these proceedings are confidential, and are also inadmissible and not discoverable (except a signed, settlement agreement), for any purpose, including impeachment, and in any pending or subsequent judicial, quasi-judicial, arbitration, or other proceeding except as specifically provided in MCR 2.412. However, evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. Inasmuch as the parties hereto have requested mediator to act as both mediator and arbitrator during the mediation portion, the undersigned acknowledge that the mediator may conduct private sessions/caucuses with one party, exclude the other party, and receive confidential information. The mediator confirms that any confidential information received during the mediation will not be used in rendering a decision as arbitrator and that the undersigned will not use the dual capacity and/or the receipt of confidential information to disqualify the mediator, or as a basis to challenge any agreement arrived at during the mediation process. The parties further acknowledge and agree that the mediator has advised them of the benefits and criticisms of this process and confirm that they understand and knowingly consent to same.

6. Subpoenas.

The parties agree not to subpoena the mediator/arbitrator or to request the mediator/arbitrator to testify for any reason, and the parties agree to defend the mediator/arbitrator in connection with any subpoena arising out of this med-arb process if they do not want any testimony to be provided. They further agree not to subpoena notes or any other materials generated during this process by anyone.

7. Caucus.

When a party representative meets alone with the mediator, he or she will clearly inform the mediator what statements or documents shall remain confidential, and what may be shared with the other party(ies). But in any event, nothing disclosed in these private discussions may be considered in the arbitration unless introduced by either party independently during the arbitration.

8. Limited Immunity/Necessary Party.

Given the very limited time and nature of this professional retention, the mediator and arbitrator under this agreement, shall have the same limited immunity as judges and court employees would have under federal or state law. The Mediator/Arbitrator is not a necessary party in any judicial or arbitration proceeding relating in any way to this med-arb process.

9. Legal Advice.

There is no attorney/client relationship between _________________________ and any party herein. For example, the parties recognize that in the process of reaching an agreement, they may choose to forego a claim or defense, ask_________________________ for his perspective on a particular issue, or

___________ may prepare a draft settlement agreement. The parties will consult an attorney if they have any questions about their legal rights. The parties recognize that __________________ does not provide legal advice.

10. The Mediation May Be Voluntary.

Unless mediation has been ordered by the Court, any party may withdraw from the mediation on written notice to all other parties and ___________________________. In the event of such withdrawal, such party shall remain responsible for its share of the fees and expenses incurred by ________________________ up to the date of withdrawal, and remain subject to the other provisions of the agreement and/or order to arbitrate. The remaining parties shall become responsible to equally share all fees and expenses after such withdrawal.

11. Fees and Appointment.

The undersigned hereby agree to the appointment of ______________________ as Mediator and Arbitrator and agree to pay all of the mediator’s time for travel, reading, research, telephone conferences or meetings with any party to arrange the mediation/arbitration, attempt to reach settlement or any other aspect of this mediation/arbitration, and the mediator's/arbitrator’s involvement in this and any subsequent related judicial or other proceeding will be billed at

00/100 ($ .00) DOLLARS per hour with a total advance due upon execution hereof in the amount of AND 00/100 ($ .00) DOLLARS to be divided equally between Plaintiff and Defendant or as otherwise agreed upon by the parties.

By the signatures below, each party, either directly or through their counsel, certifies that they agree with everything stated. All participants at the mediation will also be bound by the terms of this Agreement. This Agreement may be signed in counterparts.

Claimant

By:

Attorney for Claimant

Respondent

By:

Attorney for Respondent

OrderMarch 25, 2015

ADM File No. 2014-24

Administrative Order No. 2015-1

On order of the Court, the 16th Circuit Court and other courts approved by the Michigan Supreme Court are authorized to implement summary jury trial pilot projects. A summary jury trial is a voluntary, binding jury trial, typically conducted in a single day before a panel of six jurors and presided over by the assigned judge, a judge appointed by the court, or a special hearing officer selected jointly by the parties. The summary jury trial process is intended to afford parties an efficient and economical means of resolving their dispute. The pilot projects are established to study the effectiveness of the summary jury trial process in resolving civil cases without adjudication by the trial court. The pilot projects shall begin as soon as possible after the approval by the Court, and shall remain in effect for 24 months. The 16th Circuit Court and other pilot courts will track participation in and the effectiveness of their pilot programs and shall report to, and make such findings available to, the Michigan Supreme Court.

(A) Applicability.

This administrative order governs summary jury trial practice in the pilot projects conducted in the 16th Circuit Court and other pilot courts. The pilot projects are intended to include cases that can be presented on a summary basis, including those tort, no-fault and business proceedings that do not involve complex facts or numerous witnesses, but each pilot site will establish its own standards for identifying eligible cases. Parties who agree to participate in the summary jury trial pilot projects must participate in the scheduled summary jury trial unless the parties reach a resolution before the summary jury trial.

(B) Procedure.

(1) Stipulation: At any time after the filing of a complaint, parties who agree to participate in a summary jury trial shall file with the court a Consent Order for Summary Jury Trial. The attorneys and/or parties may stipulate to any high/low parameters, which shall not be disclosed to the jury.

Authorization of Pilot Project for Summary Jury Trials in the 16th Circuit Court and for Pilot Projects Testing Summary Jury Trials in Other Courts Approved by the Michigan Supreme Court

Michigan Supreme Court Lansing, Michigan

Robert P. Young, Jr.,Chief Justice

Stephen J. Markman Mary Beth Kelly

Brian K. ZahraBridget M. McCormack

David F. Viviano Richard H. Bernstein,

Justices

(2) Presiding Officer: The parties shall agree on who shall preside over the summary jury trial. The presiding officer may be the assigned trial court judge, a retired judge appointed to preside over the proceeding, or a special hearing officer. The trial court shall not appoint, recommend, direct or otherwise influence a party’s or attorney’s selection of a special hearing officer. If the parties agree that a retired judge should be assigned or a special hearing officer should preside, the court shall enter an order naming the presiding officer.

(3) Appointment and Qualification of Special Hearing Officer: The special hearing officer must be licensed to practice law in the State of Michigan. A special hearing officer is not authorized to enter judicial orders but must present them to the court’s assigned judge for entry. The parties and the special hearing officer, by agreement, shall determine the compensation, if any, of the special hearing officer and how that cost will be allocated between the parties.

(4) Mediation and Case Evaluation: Upon entry of a Consent Order for Summary Jury Trial, the trial court shall not require that mediation under MCR 2.411 or case evaluation under MCR 2.403 take place prior to the summary jury trial. However, the parties may voluntarily engage in any ADR processes following the entry of the consent order and before the summary jury trial.

(5) Scheduling: The clerk of the court, in consultation with the parties, shall schedule the summary jury trial and provide notice of the scheduled summary jury trial to the parties and attorneys at least 56 days before the trial’s date. The clerk of the court shall allocate such space or staff as may be available and suitable to conduct the summary jury trial. Once scheduled, the summary jury trial will be adjourned only upon written stipulation of the parties with approval of the presiding officer or upon good cause shown.

(6) Pretrial Submissions:

(a) Documentary Evidence: Any party intending to offer evidence at the summary jury trial shall serve copies of any proposed exhibits and a witness list upon all parties not less than 28 days before the scheduled date of the summary jury trial. Unless otherwise agreed by all parties, exhibits that are not served upon all parties as required under this provision are not admissible. Witnesses who have not been listed shall not be called at trial.

(b) Pretrial Conference: No later than 14 days before the scheduled date of

the summary jury trial, the judge or special hearing officer assigned to the case shall conduct a pretrial conference, at which time the special hearing officer or judge shall address:

(i) objections to any evidence, including proposed redactions, motions in limine, and other evidentiary issues;

(ii) juror questionnaires and proposed voir dire questions;

(iii) whether the jury shall be permitted to take notes;

(iv) jury instructions and the jury verdict form; and,

(v) any other matters the judge, special hearing officer, or parties consider important in governing the summary jury trial process.

(7) Record: The summary jury trial shall not be recorded by the court’s court reporter. However, any party may record or transcribe the proceedings at that party’s expense.

(8) Jury Composition: The jury of a summary jury trial shall be comprised of six jurors, selected for examination in the regular term of court. Ten potential jurors shall be seated, and after questioning, plaintiff(s) shall strike one juror, defendant(s) shall strike one juror, plaintiff(s) shall strike a second juror and defendant(s) shall strike a second juror until six jurors remain and have been impaneled. Challenges for cause are not permitted.

(9) Time Allocations: It is expected that a summary jury trial shall last no longer than one day. Unless otherwise agreed to by the parties and the court under subrule (17) below, the summary jury trial shall be conducted within the following time allocations:

(a) Jury Selection: Jury selection shall take no longer than 30 minutes, which includes 10 minutes allocated to the special hearing officer or judge for an introduction and general questions to be given to all potential jurors agreed to by the parties, and 10 minutes for questions by each side.

(b) Opening Statements: Each side shall have 15 minutes for opening statements.

(c) Presentation of Proofs: Each side shall have up to 2 hours for presentation of proofs. This time allocation shall include the party’s direct examination of witnesses, cross-examination of the other party’s witnesses, admission of exhibits, and any time spent directing the jury’s attention to specific aspects of documents that have been admitted.

(d) Closing Argument: Each side shall have up to 15 minutes for closing argument, and plaintiff shall have an additional 3 minutes for rebuttal.

(e) Jury Instruction: The parties shall make efforts to limit the number of instructions read to allow the instructions to be presented in 10 minutes or less.

(10) Rules of Evidence: The parties may offer evidence that is relevant and material to the dispute. The judge or hearing officer shall not require authentication of documentary evidence for purposes of admissibility. As part of the Consent Order for Summary Jury Trial, the parties may agree to modify the rules of evidence. The parties are encouraged to stipulate to modes and methods of presentation that will expedite the process, such as an agreement regarding the admissibility of video or written depositions, affidavits, written reports and ex parte depositions with any agreed upon redactions.

(11) Jury Verdict: The verdict of the jury shall be returned on a written verdict form and is binding, subject to any written high/low limitations agreed upon by the parties. A verdict will be received when five of the six jurors agree on a disposition.

(12) Inconsistent Verdict: In the case of an inconsistent verdict, the judge or special hearing officer shall recharge the jury as appropriate and require it to return to deliberation to resolve any inconsistency.

(13) Posttrial Motions: The only posttrial motion available to the parties shall be a motion for new trial, which must be filed with the trial court and served on the judge or special hearing officer as well as the other parties within seven days after entry of the jury’s verdict. The judge or special hearing officer shall grant a new trial only under the following circumstances:

(a) an irregularity in the proceedings of the court, jury, or prevailing party, or an order of the court or abuse of discretion that denied the moving party a fair trial;

(b) misconduct of the jury or of the prevailing party during the trial;

(c) error of law occurring in the proceedings; or

(d) fraud (intrinsic or extrinsic) of an adverse party.

(14) Order of Judgment: The nonprevailing party shall pay the prevailing party the judgment amount within 28 days after the jury renders a verdict, subject to any high/low parameters established before the trial. After payment, the prevailing party shall submit an Order of Dismissal with Prejudice for entry by the court.

If payment is not made within 28 days after entry of the verdict, an Order of Judgment based upon the jury verdict, subject to any high/low agreement, shall be entered by the circuit court consistent with MCR 2.602.

(15) Waiver of Costs and Sanctions: Except in the case of fraud, the parties agree to waive taxation of costs and sanctions.

(16) No Right to Appeal and Costs: Except in the case of fraud, the parties agree to waive the right to appeal the jury’s verdict. Any appeals shall be taken in accordance with the Appellate Rules found at MCR 7.201- 7.219.

(17) Modification of Procedures: Any of the above described procedures may be modified by stipulation of the parties with approval of the judge or special hearing officer.

I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

March 25, 2015

STATE OF MICHIGANIN THE CIRCUIT COURT FOR THE COUNTY OF _______________

Party A

v. Civ. Action No. Hon.

Party B________________________________________/

At a session of said Courtheld on ________________ and the Courtafter being fully apprised in the Premises;

IT IS HEREBY ORDERED:

Upon the stipulation and mutual voluntary agreement of the parties, and pursuant to MCR 2.410 [and the local ADR plan if amended to provide for the appointment of a Special Master] the Court has appointed ____________ to perform the duties of a Special Master as specifically set forth below:

a. The Special Master shall confer with the parties in an attempt to resolve the pending [set forth the specific dispute, e.g., “the e-discovery dispute that has been briefed by the parties”] (the “dispute”);

b. Absent a mutually satisfactory resolution of the dispute, the Special Master is authorized to make a recommendation to the Court for the resolution of the dispute and in that recommendation shall set forth any relevant findings of fact and conclusions of law and the rationale and legal bases for the Special Master’s recommendation;

c. The recommendation or agreement of the parties must be submitted to the Court no later than the close of business on _______________;

d. If the parties come to an agreement to resolve the dispute, the parties are to submit a proposed Order to the Court setting forth the terms of that agreement for entry by the Court;

e. If the parties are unable to come to an agreement, and the Special Master makes a recommendation, that written recommendation is to be provided to the parties and the Court concurrently and each party will have ten (10) business days to object to the Special Master’s recommendation in whole or in part and those objections must be in writing and set forth with specificity the bases for the party’s objection(s);

f. A party may respond to the objections filed by the objecting party within ten (10) business days of the service of the objections;

g. If no party objects to the Special Master’s recommendation within the time specified in paragraph (e), then the recommendation of the Special Master will be reviewed by the Court and adopted, modified, or rejected as determined appropriate by the Court; and,

h. If any party objects to the Special Master’s recommendation, the Court will consider the matter de novo and may request a hearing on the matter as determined appropriate and necessary by the Court.

IT IS FURTHER ORDERED:

That unless agreed to the contrary by the parties, the parties will share on a pro rata basis the hourly fee charged by the Special Master for all services rendered and in accordance with the terms of the written retention agreement between the Special Master and the parties.

If there is a dispute as to the terms of the retention of the Special Master, or if the Special Master is unable to perform the services required by this Order, the parties are to advise the Court immediately.

Hon. _____________________________Circuit Court Judge

Approved as to Form and Substance:

By: __________________________Attorney for Party A

By: __________________________Attorney for Party B

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF ______________

Plaintiff, Case No.

HON.

v.

Defendants.

ORDER APPOINTING RECEIVER

At a session of the Court held in theCity of Mt. Clemens, County of Macomb,

State of Michigan on:__________________________

PRESENT: HON.___________________CIRCUIT COURT JUDGE

IT IS HEREBY ORDERED that:

APPOINTMENT OF RECEIVER

, whose business address is (hereinafter "Receiver") is hereby named and appointed Receiver pursuant to MCL 600.2926,

and is acting under this Order as the Agent of the Court, with full power as Receiver over all of the assets and property, real, personal or mixed, including the rents or income related thereto (the "Assets") of the defendant _______________ (“Defendant”) including the property commonly known as _____________________________, described as follows (the “Property”):

INSERT LEGAL DESCRIPTION

Parcel Identification Number:

The Receivership encompasses the Assets and the Property as defined hereinabove and extends to any tangible or intangible asset of the Defendant wheresoever situate, including without limitation, all

deposit accounts, all brokerage accounts, all electronic currency accounts, all internet payment processor accounts, accounts receivable, dealer hold back accounts, real estate, leases, contract rights, distributorships and/or franchise rights, inventory and tools.

MANAGING THE RECEIVERSHIP ESTATE

IT IS FURTHER ORDERED that the Receiver is authorized to take any action the Receiver deems reasonable and appropriate, in his sole discretion, to marshal the Receivership Estate and take possession of, to exercise full control over, and to prevent waste and to preserve, manage, maintain, secure and safeguard the Assets and Property which comprise the receivership estate (the “Receivership Estate”). The Receiver has the sole discretion with respect to taking possession of Assets and need not take possession of all the Assets. The Receiver is empowered to:

1. Collect, preserve, hold and manage all receivership Assets, and perform all acts necessary to preserve the value of the Assets, to prevent loss, damage or injury;

2. Immediately seize, change locks, and assume exclusive possession and control over the Property;

3. Perform accountings, audits, reviews, investigations, interviews and make any other inquiries or analyses which the Receiver deems necessary and appropriate to determine the extent and nature of the properties, assets and liabilities of the Defendant, including making an analysis of the sources and uses of all funds collected and expended by the Defendant, and including, without limitation, making an analysis of the uses and applications of all funds received by the Defendants from Plaintiff;

4. Enter into contracts on behalf of the Defendant, execute any document on behalf of the Defendant and to use the assets of the Defendant, to employ individuals and businesses to complete any contract the Receiver deems appropriate;

5. Market and sell the Property, subject to providing a credit to Plaintiff in an amount up to the amount of Plaintiff’s protective advances plus Defendant’s indebtedness to Plaintiff. Upon negotiation of a listing agreement with a real estate broker, the Receiver shall provide the parties a copy of the proposed listing agreement. If no objections are received within five (5) business days, the Receiver shall enter into the listing agreement. If a party objects to the listing agreement, the Receiver shall file a motion with the Court to resolve the objection;

6. Upon receipt of an Offer that the Receiver deems to be acceptable, it shall be provided to the parties. If no objections are received within five (5) business days the Receiver shall accept the Offer. If a party objects to the Offer, the Receiver shall file a motion with the court to resolve the objection. Any sale by the Receiver shall be free and clear of any mortgage lien.

7. Operate the Property to such extent as he deems will benefit the Receivership Estate. The Receiver may utilize agents or other persons or entities as the Receiver may from time to time deem appropriate;

8. Remove any officer, manager, independent contractor, employee, or agent of the Property from control and management of the affairs of the Property;

9. Control all funds and accounts of the Property and prevent the withdrawal or misapplication of said funds;

10. Manage and administer all aspects of the Property by performing all acts incidental thereto that the Receiver deems appropriate, including without limitation collecting rent, hiring or dismissing any and all personnel or suspending operations of any business;

11. Sue for, collect, receive, and take possession of all goods, chattels, rights, credits, moneys, effects, land, rents, leases, documents, books, records and work papers, including computer-maintained information, and other papers relating to the Property.

12. Initiate, defend, compromise, adjust, intervene in, dispose of, or become a party to any actions or proceedings in any state, federal or foreign court necessary to preserve or increase the Assets or value of the Property or to carry out his duties pursuant to this Order or any prior order of the Court;

13. Choose, engage and employ attorneys, accountants, appraisers, brokers and other independent contractors and technical specialists, as the Receiver deems advisable or necessary in the performance of duties and responsibilities under the authority granted by this Order and to pay such persons from the Assets;

14. Issue subpoenas to obtain documents and records pertaining to the Receivership, and conduct discovery in this action on behalf of the Receivership Estate;

15. Open one or more bank accounts as designated depositories for funds relating to the Property. The Receiver may deposit all funds relating to the Property in such designated accounts and shall thereafter make all payments and disbursements from the Receivership Estate from such accounts; and

16. Make payments and disbursements from the Receivership Estate that are necessary or advisable for carrying out the directions of this Court, or exercising the authority granted by this Order.

DELIVERY OF POSSESSION OF PROPERTY TO RECEIVER

IT IS FURTHER ORDERED that this Court commands county or local law enforcement officers, or any other court officer that the Court Appointed Receiver may choose to employ, to deliver to Receiver without delay, possession of the Assets of the Defendant including the Property; and

IT IS FURTHER ORDERED that as soon as practicable after service of this Order upon them, the Defendants and any other person or entity served with a copy of this Order, shall deliver to the Receiver:

1. Possession and custody of all funds, assets, property, and all other Assets, owned or otherwise beneficially vested in the Defendant;

2. All keys, computer passwords, entry codes, and combination locks necessary to gain access or to secure access to any of the Assets including documents relating to the Property including, but not limited to, means of communications, accounts, computer systems, or other property;

3. All cash and deposits owned by or in the possession of Defendant and/or Defendant’s shareholders, employees and agents related to the Receivership Estate;

4. Possession and custody of documents relating to the Assets including but not limited to, all books and records of account, all financial and accounting records, all tax returns, balance sheets, income statements, bank records (including monthly statements, canceled checks, records of wire transfers, and check registers), rent rolls, customer lists, client lists, title documents, leases, insurance policies, service contracts and other papers. This provision encompasses electronically maintained records, data and information;

5. A schedule of all payables related to the Assets and the unpaid invoices relating to the payables;

6. A schedule of monthly operating expenses related to the Assets and detail relative to such expenses including required utilities;

7. Exclusive of the above captioned action, a schedule of pending litigation relative to the Assets or the operation of the Assets that identifies the nature of the litigation and the counsel of record;

8. Possession and custody of all precious metals, other commodities, funds, and other assets held by or on behalf of the Defendant; and

9. Any other documents or data the Receiver may request from time to time.

PROTECTIVE ADVANCES

IT IS FURTHER ORDERED that all advances made by the Plaintiff pursuant to a request by the Receiver for the benefit and protection of the Receivership Estate, together with any other costs and expenses approved by the Court that are charged or incurred by the Receiver pursuant to this Order, shall be deemed to be protective advances under the existing loan documents and pursuant to the mortgage held by Plaintiff covering the Property, and shall be secured by Plaintiff’s liens thereunder, and shall have priority over all claims and liens of all others claiming an interest in the mortgaged Property excepting the Receiver.

POSSESSION OF DOCUMENTS AND RESTRAINT ON DESTRUCTION

IT IS FURTHER ORDERED that the Receiver is granted the power to take immediate possession of and/or copy all books, records, leases, rent rolls, notes, memoranda, loan documents, trusts, deeds, bills of sale, canceled checks, checks, check ledgers, calendar notes, diary notes, ledgers, electronically stored data, tape recordings, and computer discs, or any other financial documents or financial information in whatever form belonging or appertaining to the Defendant;

IT IS FURTHER ORDERED that the Defendants and all persons or entities who receive notice of this Order by personal service or otherwise, are restrained and enjoined from directly or indirectly destroying, mutilating, erasing, altering, concealing, or disposing of, in any manner, directly or indirectly, any documents that relate to the Assets and to the business practices or business finances of the Defendant; and

IT IS FURTHER ORDERED that until further Order of this Court, the Defendants, their agents and employees, and all other persons with notice of this Order (other than Receiver or Receiver’s agents), are restrained and enjoined from directly or indirectly transferring, encumbering, removing, expending, distributing, concealing, destroying, mutilating, damaging, erasing, altering, disposing of, or otherwise diminishing or causing harm to any of the Assets, or any part of the Assets, including without limitation, all fixtures, machinery, equipment, materials, appliances, inventory, all financial assets and goods of every nature, and all articles of personal property located in, or on, or used, or intended to be used in connection with the Assets, and all proceeds from the operations of the Property, including all revenue. No security is required prior to issuance of this injunction.

RESTRAINT ON TRANSFER OF PROPERTY

IT IS FURTHER ORDERED that except as otherwise ordered by this Court, the Defendant is restrained and enjoined from directly or indirectly transferring, selling, alienating, liquidating, encumbering, pledging, leasing, loaning, assigning, concealing, dissipating, converting, withdrawing, or otherwise disposing of any portion of the Assets relating to the Property.

In addition to the other powers and authority granted in this Order, the Receiver shall have the full authority and power to sell any Asset as defined, or any other asset that comes into the Receiver’s possession and control that the Receiver deems to be unproductive or the Receiver considers unnecessary to support the Property as a going concern.

DIRECTIVES TO FINANCIAL INSTITUTIONS, EMPLOYERS AND OTHERS

IT IS FURTHER ORDERED that pending further Order of this Court, any governmental agency, financial or brokerage institution, business entity, accountant, attorney, agent, trust, trustee of any trust, service provider or other person, that holds, controls, or maintains custody of any record, account, asset or data or at any time has held, controlled, managed or maintained custody of any record, account, asset or data owned by, in the name of or for the benefit of the Defendant shall:

1. Prohibit the Defendant, and all other persons from withdrawing, removing, assigning, transferring, pledging, encumbering, disbursing, dissipating, converting, selling, or otherwise disposing of any such Asset except as directed by the Receiver;

2. Deny the Defendant, and all other persons, except the Receiver, access to any safe deposit box titled in the name of the Defendant either individually or jointly with another person or entity;

3. Provide the Receiver, within five (5) business days of receiving a copy of this Order, a statement setting forth:

(i) the identification number of each and every account or asset titled in the name, individually or jointly, of, or held on behalf of, or for the benefit of the Defendant;

(ii) the balance of each such account, or a description of the nature and value of such asset as of the close of business on the day on which this Order is served, and, if the account or other asset has been closed or removed, the date closed or removed, the total funds removed in order to close the account, and the name of the person or entity to whom such account or other asset was remitted;

(iii) the identification of any safe deposit box that is either titled in the name of the Property or jointly with, another person or entity or is otherwise subject to access by the Defendant; and

(ix) upon request by the Receiver, promptly provide the Receiver with copies of all records or other documentation pertaining to such account or asset, including, but not limited to, originals or copies of account applications, account statements, signature cards, checks, drafts, deposit tickets, transfers to and from the accounts, and all other debit and credit instruments or slips, currency transaction reports, 1099 forms, and safe deposit box logs.

4. Provide the Receiver, within five (5) business days of receiving a copy of this Order, a copy of any records or files relating to, about, for the benefit of or otherwise pertaining to the Defendant, and upon delivery of such records or files, to thereafter provide Receiver full cooperation with respect to the matters contained within such records or files and to provide the Receiver all of the rights that the Defendant would have as to any matter relating to such record or file.

IT IS FURTHER ORDERED that the Receiver has express authority to sign as Receiver, on behalf of any Defendant any checks, bank account documents, drafts, stock certificates, bonds, deeds or other instruments of title and said signature shall have the same legal effect as if a duly authorized officer, manager or member of a Defendant signed the same;

IT IS FURTHER ORDERED that the Receiver has express authority to attach the revenue of the Property and any employee of the Defendant shall comply with the instructions of the Court's Receiver;

IT IS FURTHER ORDERED that any savings bank or similar institution receiving a copy of this Order shall, upon the demand of Receiver, forthwith turn over to the Receiver any and all contents of safe deposit boxes, owned by the Defendant in whole or together with any other individual; and

IT IS FURTHER ORDERED that any savings bank or similar institution receiving a copy of this Order shall accept the signature of the Receiver to withdraw any and all funds that Defendant has the right to withdraw from said institution with the same legal effect as though a duly authorized agent of the Property had signed.

RESTRAINT ON ACTION BY CREDITORS

IT IS FURTHER ORDERED that except by leave of this Court, the Defendant and all other persons, creditors and entities be and hereby are stayed from taking any action to establish or enforce any claim,

right or interest for, or against the Receiver, the receivership Assets, or the Receiver's duly authorized agents acting in their capacities as such, including but not limited to, the following actions:

1. Commencing, prosecuting, litigating or enforcing any suit, except that actions may be filed to toll any applicable statute of limitations;

2. Accelerating the due date of any obligation or claimed obligation, enforcing any lien upon, or taking or attempting to take possession of, or retaining possession of, property of the Defendant or any property claimed by the Defendant or attempting to foreclose, forfeit, alter or terminate any of the Defendant’s interest in property, whether such acts are part of a judicial proceeding or otherwise;

3. Using self-help or executing or issuing, or causing the execution or issuance of any court attachment, subpoena, replevin, execution or other process for the purpose of impounding or taking possession of or interfering with, or creating or enforcing a lien upon any property, wherever located, owned by or in the possession of the Defendant or the Receiver, or any agent of the Receiver; and

4. Doing any act or thing to interfere with the Receiver taking control, possession or management of the Assets or any other property subject to the receivership, or to in any way interfere with the Receiver or the duties of the Receiver; or to interfere with the exclusive jurisdiction of this Court over the Assets or property of the Defendant.

This section does not stay the commencement or continuation of an action or proceeding by a governmental unit to enforce such governmental unit's police or regulatory power.

COOPERATION

IT IS FURTHER ORDERED that the parties and their counsel shall fully cooperate with the Receiver to allow him to carry out his duties.

INVENTORY

IT IS FURTHER ORDERED that within five (5) business days of receipt of a copy of this Order, the Defendants shall provide the Receiver a complete inventory of real and personal property owned by the Defendant as of _______________.

INSURANCE

IT IS FURTHER ORDERED that the Defendant and third-parties receiving notice of this Order shall reasonably cooperate with the Receiver in obtaining all necessary insurance relating to the ownership of the Assets and the operations of the Property, including but not limited to fire, extended coverage, property damage, general and professional liability, and workers' compensation. The Receiver shall be named as an additional insured on all such liability policies. The Receiver shall also be named as an additional insured on all casualty policies. Notwithstanding the foregoing, the Receiver has no duty to procure any form of insurance.

UTILITIES

IT IS FURTHER ORDERED that any utility company receiving notice of this Order shall establish and provide utility service in the name of the Receiver as may be requested.

ENVIRONMENTAL

IT IS FURTHER ORDERED that nothing contained in this Order, nor the grant to or exercise of any powers provided herein by the Receiver, shall cause the Receiver to be considered a past or present owner, operator or other person potentially responsible or liable pursuant to any provision of Part 201 or Part 231 of the NREPA, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 USC § 9601, et seq., the Resource Conservation and Recovery Act (RCRA), 42 USC § 6901 et seq., or under any other statutory, regulatory, common law or strict liability theory.

IT IS FURTHER ORDERED that the Court finds that Plaintiff, is engaged in workout activity and has a secured interest exemption as those terms are defined by Part 201, Part 213, CERCLA and RCRA, or regulations promulgated thereunder, and its actions in seeking appointment of a receiver are intended to protect the value and marketability of its collateral. Further Plaintiff’s actions in seeking appointment of a receiver do not amount to participation in the management of a facility as those terms are defined in Part 201, Part 213, CERCLA and RCRA.

REGISTER OF DEEDS

IT IS FURTHER ORDERED that the Register of Deeds shall accept a certified copy of this Order for recording, against the Property and any other real property in which the Receiver determines that the Defendant has an interest.

BOND OF RECEIVER

IT IS FURTHER ORDERED that the Receiver shall post a surety bond in the penal sum of and 00/100 Dollars ($ ), and the bond shall be continued until such time as the Court

shall order the Receiver be discharged.

IMMUNITY OF RECEIVER

IT IS FURTHER ORDERED that the Receiver, while lawfully acting as such, is an agent of the Court and is entitled to and shall have immunity to the fullest extent of the law, from and against any and all causes of action, suits, proceedings, claims, demands, losses, damages and liabilities ("Claims"), in any manner arising from, in connection with or relating to any of the Assets and/or conduct in the course of his acting in his court appointed capacity. Any person employed or engaged by the Receiver in the performance of his duties hereunder shall be afforded the same immunities afforded to the Receiver but shall not be immune for conduct that constitutes gross negligence or conduct that is intentionally wrongful.

The Receiver shall not be liable for any claim, obligation, liability, action, cause of action, cost or expense of the Property arising out of or relating to events or circumstances occurring prior to this Order, including without limitation, any contingent or unliquidated obligations and any liability for the performance of services rendered by third parties on behalf of the Defendant, and any liability to which the Defendant, is currently or may ultimately be exposed under any applicable laws pertaining to the ownership, use or operation of the Property (collectively all of the foregoing is referred to as "Pre-Receivership Liabilities"). The Receiver shall not be obligated to advance any funds to pay any Pre-Receivership Liabilities. Notwithstanding the foregoing, Receiver may pay Pre-Receivership Liabilities from funds collected from the sale of an Asset or operation of the Property if the Receiver deems it necessary and in the best interest of the Receivership Estate.

PRIORITY OF CLAIMS AND DISPOSITION OF RECEIVERSHIP PROPERTY

IT IS FURTHER ORDERED that any and all monies, cash, funds, sale proceeds from the sale of assets and/or property, and other receipts that come into the possession of the Receiver, shall be applied to the following expenses in the following order of priority:

1. To pay the fees and expenses of the Receiver;

2. To pay and satisfy the obligations associated with operations of the Property; and

3. To pay amounts due to Plaintiff under its Judgment and such other amounts as may accrue with respect thereto.

REPORTING

IT IS FURTHER ORDERED that:

1. The Receiver is an agent of the Court and shall file reports (“Reports”) without necessity for taking oath. The Receiver’s first report shall be for the period extending from the date of appointment to the last day of the end of a calendar quarter that is at least three months subsequent to the date of appointment, and shall be due on or before the 15th day of the month following the last day of the period the first report covers. Thereafter the Receiver shall file a report within fifteen (15) days of the last day of each calendar quarter and at such more frequent intervals as the Receiver deems it necessary to advise the Court of the status of the Receivership

2. The Receiver reports shall advise the Court as to all material actions taken by the Receiver and any material concerns. The Receiver’s report shall include an accounting for cash receipts and disbursements. Each such report shall include copies of the Receiver’s invoices for the period encompassed by the Report. No Receiver fees shall be paid without the prior approval of the Court. If the Receivership Estate is insufficient to fully pay the Receiver’s fees and expenses, the Receiver may charge the Plaintiff for any such fees and expenses incurred that the Court shall have approved and ordered paid.

3. In the event a party files an objection to a Report, the Receiver shall file a request for the Court to schedule a hearing to resolve the objection.

RETENTION OF JURISDICTION

IT IS FURTHER ORDERED that any Judgment or Orders of this Court previously entered that are not inconsistent with this Order shall remain in full force and effect and this Court retains jurisdiction of this matter for the purpose of enforcing this Order and its prior orders.

THIS ORDER DOES NOT RESOLVE ALL PENDING CLAIMS AND DOES NOT CLOSE THE CASE.

Dated: .

CIRCUIT COURT JUDGE

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF _____________

,

Plaintiff, Case No.

HON.

v.

,

Defendant.

/

/

ORDER DEFININGRECEIVER’S POWERS AND DUTIES

The Court having ordered the appointment of ________________ as Receiver in the

above referenced matter and the Receiver having filed an acceptance of the appointment

subject to further order of the Court that more fully sets forth the Court’s charge and the

authority concomitant to the performance of the Receiver’s duties, IT IS HEREBY ORDERED:

APPOINTMENT OF RECEIVER

IT IS ORDERED, that _______________, whose business address is ______________,

____________, Michigan ______ (hereinafter "Receiver") was named and appointed Receiver

pursuant to MCL 600.2926 on ____ , and is acting under this Order as the Agent

of the Court, with full power as Receiver over the assets of Plaintiff,

_________________________ (the “Business”). The Receivership extends to any tangible or

intangible asset of the Business wheresoever situated, including without limitation, all deposit

accounts, all brokerage accounts, all electronic currency accounts, all internet payment

processor accounts, accounts receivable, dealer hold back accounts, real estate, leases,

contract rights, distributorships and/or franchise rights, inventory and tools, or any other asset

owned by or utilized in the operations of the Business (the “Assets”).

IT IS FURTHER ORDERED that the Receivership extends to the individual Plaintiff and

the individual Defendant to the extent the Receiver determines they are in possession of an

asset of the Business.

MANAGING THE RECEIVERSHIP ESTATE

IT IS FURTHER ORDERED that the Receiver is authorized and empowered to take any

action the Receiver deems reasonable and appropriate to marshal and take possession of the

receivership estate, to exercise full control over, and to prevent waste and to preserve, manage,

maintain, secure and safeguard the Business and its Assets (the “Receivership Estate”).

Without limiting the general authority provided hereinabove, the Receiver may, at his option:

1. Collect, preserve, hold and manage the Receivership Estate, perform all acts

necessary to preserve the value thereof and take any action the Receiver deems appropriate to

prevent any loss, damage or injury to the Receivership Estate;

2. Seize, change locks, and assume exclusive possession and control over any real

property in the Receivership Estate;

3. Perform accountings, audits, reviews, investigations, interviews and make any

other inquiries or analyses which the Receiver deems necessary and appropriate to determine

the extent and nature of the Receivership Estate, including making an analysis of the sources

and uses of all funds collected and expended by the Business;

4. Enter into contracts on behalf of the Business, execute any document on behalf

of the Business and to use the Assets, to employ individuals and businesses to complete any

contract or perform any service the Receiver deems appropriate;

5. Operate the Business to such extent as the Receiver deems beneficial to the

Receivership Estate. The Receiver may utilize agents or other persons or entities as the

Receiver may from time to time deem appropriate;

6. Remove any officer, manager, independent contractor, employee, or agent of the

Business from control and management of the affairs of the Business;

7. Control all funds and accounts of the Business and prevent the withdrawal or

misapplication of said funds;

8. Manage and administer all aspects of the Business by performing all acts

incidental thereto that the Receiver deems appropriate, including without limitation hiring or

dismissing any and all personnel or suspending operations of the Business;

9. Sue for, collect, receive, and take possession of all goods, chattels, rights,

credits, moneys, effects, land, rents, leases, documents, books, records and work papers,

including computer-maintained information, and other papers of the Business including

documents related to customers, clients, shareholders or members of the Business;

10. Initiate, defend, compromise, adjust, intervene in, dispose of, or become a party

to any actions or proceedings in any state, federal or foreign court necessary to preserve or

increase the assets of the Business or to carry out the Receiver’s duties pursuant to this Order

or any prior order of the Court;

11. Choose, engage and employ attorneys, accountants, appraisers, brokers and

other independent contractors and technical specialists, as the Receiver deems advisable or

necessary in the performance of duties and responsibilities under the authority granted by this

Order and to pay such persons from the Business;

12. Issue subpoenas to obtain documents and records pertaining to the

Receivership, and conduct discovery in this action on behalf of the Receivership Estate;

13. Open one or more bank accounts as designated depositories for funds of the

Business. The Receiver shall deposit all funds of the Business in such designated accounts and

shall thereafter make all payments and disbursements for the Receivership Estate from such

accounts;

14. Make payments and disbursements from the Receivership Estate that are

necessary or advisable for carrying out the directions of this Court, or exercising the authority

granted by this Order.

15. Provide for the maintenance of accurate books, records and financial reports of

the Business including income statements, balance sheets, and such other financial reports as

are typically prepared for businesses.

16. Provide any party to the proceedings such data from the records of the Business

as the Receiver shall deem reasonable in the circumstances;

17. Receive and endorse checks pertaining to the Business in the name of the

Receiver or in the name of the Business.

18. Sign as Receiver any instruments relative to the Business, including without

limitation, titles to vehicles, leases, contracts, purchase orders or notices required by law and to

take any action incident thereto;

19. Enforce or terminate any existing contracts affecting the Business;

20. Investigate and review all transactions subsequent to _____________, between

the Business and the individual parties to the captioned litigation;

21. Receiver shall not be responsible for the preparation and filing of any tax returns

for the Businesses or any affiliate; however, the Receiver shall provide any party with

information in the Receiver’s possession that may be necessary for preparation of any tax

return.

RECEIVER’S AUTHORITY

IT IS FURTHER ORDERED that while acting as the agent of this Court, the Receiver is

authorized and directed to exercise the powers set forth in this Order and the Receiver is

empowered to exercise such further powers as are provided by the laws of the State of

Michigan with respect to receivers.

IT IS FURTHER ORDERED that, with the exception of a sale of real property, the

Receiver may act on behalf of the Business as he deems necessary or appropriate without

seeking further order of this Court, but may seek the counsel and further direction of this Court

as he deems appropriate.

DELIVERY OF POSSESSION OF PROPERTY TO RECEIVER

IT IS FURTHER ORDERED that this Court commands the Sheriff of Macomb County, or

any other court officer that the Court Appointed Receiver may choose to employ, to deliver to

Receiver upon request and without delay, possession of the Assets of the Business; and

IT IS FURTHER ORDERED that as soon as practicable after service of this Order upon

them, the Business and any other person or entity served with a copy of this Order, shall deliver

to the Receiver upon Receiver’s request:

1. Possession and custody of the Assets owned by or otherwise beneficially vested

in the Business;

2. Possession and custody of documents of the Business including but not limited

to, all books and records of account, all financial and accounting records, all tax returns,

balance sheets, income statements, bank records (including monthly statements, canceled

checks, records of wire transfers, and check registers), customer lists, client lists, title

documents and other business records. This provision encompasses electronically maintained

records and data;

3. Possession and custody of all precious metals, other commodities, funds, and

other assets held by or on the behalf of the Business;

4. All keys, computer passwords, entry codes, and combination locks necessary to

gain access or to secure access to any of the Assets or documents of the Business including,

but not limited to, means of communications, accounts, computer systems, or other property;

and

5. Information identifying the accounts, employees, properties and other assets or

obligations of the Business.

POSSESSION OF DOCUMENTS AND RESTRAINT ON DESTRUCTION

IT IS FURTHER ORDERED that the Receiver is granted the power to take immediate

possession of and/or copy all books, records, notes, memoranda, loan documents, trusts,

deeds, bills of sale, canceled checks, checks, check ledgers, calendar notes, diary notes, other

notes, ledgers, electronically stored data, tape recordings, and computer discs, or any other

documents or financial information in whatever form belonging or appertaining to the Business;

IT IS FURTHER ORDERED that the Business and all persons or entities who receive

notice of this Order by personal service or otherwise, are restrained and enjoined from directly

or indirectly destroying, mutilating, erasing, altering, concealing, or disposing of, in any manner,

directly or indirectly, any documents that relate to the Assets and to the business practices or

business finances of the Business; and

IT IS FURTHER ORDERED that until further Order of this Court, the Business, its

agents and employees, and all other persons with notice of this Order (other than Receiver or

Receiver’s agents), are restrained and enjoined from directly or indirectly transferring,

encumbering, removing, expending, distributing, concealing, destroying, mutilating, damaging,

erasing, altering, disposing of, or otherwise diminishing or causing harm to any of the Assets, or

any part of the Assets, including without limitation, all fixtures, motor vehicles, machinery,

equipment, materials, appliances, inventory, all financial assets and goods of every nature, and

all articles of personal property located in, or on, or used, or intended to be used in connection

with the Business, and all proceeds from the operations of the Business, including all revenue.

No security is required prior to issuance of this injunction.

RESTRAINT ON TRANSFER OF PROPERTY

IT IS FURTHER ORDERED that except for transactions in the ordinary course of

business or as otherwise ordered by this Court, the Business is restrained and enjoined from

directly or indirectly transferring, selling, alienating, liquidating, encumbering, pledging, leasing,

loaning, assigning, concealing, dissipating, converting, withdrawing, or otherwise disposing of

any portion of the Assets of the Business.

In addition to the other powers and authority granted in this Order, the Receiver shall

have the full authority and power to sell any Asset as defined, or any other asset that comes into

the Receiver’s possession and control that the Receiver deems to be unproductive or the

Receiver considers unnecessary to support the Business as a going concern during the period

that the Receiver is winding up its operations.

DIRECTIVES TO FINANCIAL INSTITUTIONS, EMPLOYERS AND OTHERS

IT IS FURTHER ORDERED that pending further Order of this Court, any governmental

agency, financial or brokerage institution, business entity, accountant, attorney, agent, trust,

trustee of any trust, service provider or other person, that holds, controls, or maintains custody

of any record, account, asset or data or at any time has held, controlled, managed or

maintained custody of any record, account, asset or data owned by, in the name of or for the

benefit of the Business shall:

1. Prohibit the Business, and all other persons from withdrawing, removing,

assigning, transferring, pledging, encumbering, disbursing, dissipating, converting, selling, or

otherwise disposing of any such Asset except as directed by the Receiver;

2. Deny the Business, and all other persons access to any safe deposit box titled in

the name of the Business either individually or jointly with another person or entity;

3. Provide the Receiver, within five (5) business days of receiving a copy of this

Order, a statement setting forth:

(i) the identification number of each and every account or asset titled

in the name, individually or jointly, of, or held on behalf of, or for the benefit of the

Business;

(ii) the balance of each such account, or a description of the nature

and value of such asset as of the close of business on the day on which this

Order is served, and, if the account or other asset has been closed or removed,

the date closed or removed, the total funds removed in order to close the

account, and the name of the person or entity to whom such account or other

asset was remitted;

(iii) the identification of any safe deposit box that is either titled in the

name of the Business or jointly with, another person or entity or is otherwise

subject to access by the Business; and

(iv) upon request by the Receiver, promptly provide the Receiver with

copies of all records or other documentation pertaining to such account or asset,

including, but not limited to, originals or copies of account applications, account

statements, signature cards, checks, drafts, deposit tickets, transfers to and from

the accounts, and all other debit and credit instruments or slips, currency

transaction reports, 1099 forms, and safe deposit box logs.

4. Provide the Receiver, within five (5) business days of receiving a copy of this

Order, a copy of any records or files relating to, about, for the benefit of or otherwise pertaining

to the Business, and upon delivery of such records or files, to thereafter provide Receiver full

cooperation with respect to the matters contained within such records or files and to provide the

Receiver all of the rights that the Business would have as to any matter relating to such record

or file.

IT IS FURTHER ORDERED that the Receiver has express authority to sign as Receiver,

on behalf of the Business any checks, bank account documents, drafts, stock certificates,

bonds, deeds or other instruments of title and said signature shall have the same legal effect as

if a duly authorized officer, manager or member of the Business signed the same;

IT IS FURTHER ORDERED that the Receiver has express authority to attach the

revenue of the Business and any employee of the Business shall comply with the instructions of

the Court's Receiver;

IT IS FURTHER ORDERED that any savings bank or similar institution receiving a copy

of this Order shall, upon the demand of Receiver, forthwith turn over to the Receiver any and all

contents of accounts or safe deposit boxes, owned by the Business in whole or together with

any other individual; and

IT IS FURTHER ORDERED that any savings bank or similar institution receiving a copy

of this Order shall accept the signature of the Receiver to withdraw any and all funds the

Business has the right to withdraw from said institution with the same legal effect as though a

duly authorized agent of the Business had signed.

RESTRAINT ON ACTION BY CREDITORS

IT IS FURTHER ORDERED that except by leave of this Court, the Business and all

other persons, creditors and entities be and hereby are stayed from taking any action to

establish or enforce any claim, right or interest for, against, on behalf of, or in the name of the

Business, against the Receiver, the Receivership Estate, or the Receiver's duly authorized

agents acting in their capacities as such, including but not limited to, the following actions:

1. Commencing, prosecuting, litigating or enforcing any suit, except that actions

may be filed to toll any applicable statute of limitations;

2. Accelerating the due date of any obligation or claimed obligation, enforcing any

lien upon, or taking or attempting to take possession of, or retaining possession of, property of

the Business or any property claimed by the Business or attempting to foreclose, forfeit, alter or

terminate the Business’s interest in property, whether such acts are part of a judicial proceeding

or otherwise;

3. Using self-help or executing or issuing, or causing the execution or issuance of

any court attachment, subpoena, replevin, execution or other process for the purpose of

impounding or taking possession of or interfering with, or creating or enforcing a lien upon any

property, wherever located, owned by or in the possession of the Business or the Receiver, or

any agent of the Receiver; and

4. Doing any act or thing to interfere with the Receiver taking control, possession or

management of the assets within the scope of the Receivership Estate or any other property

subject to the Receivership, or to in any way interfere with the Receiver or the duties of the

Receiver; or to interfere with the exclusive jurisdiction of this Court over the Receivership

Estate.

This section does not stay the commencement or continuation of an action or

proceeding by a governmental entity to enforce police or regulatory power.

COOPERATION

IT IS FURTHER ORDERED that the parties and their counsel shall carry out the

directives of the Receiver and fully cooperate with the Receiver in the performance of his duties.

INVENTORY

IT IS FURTHER ORDERED that within five (5) business days of receipt of a copy of this

Order, the Business shall provide the Receiver a complete inventory of the personal property

owned by such Business as of .

INSURANCE

IT IS FURTHER ORDERED that the Business and third-parties receiving notice of this

Order shall cooperate with the Receiver in obtaining all necessary insurance relating to the

ownership of the Assets and the operations of the Business, including but not limited to fire,

extended coverage, property damage, general and professional liability, and workers'

compensation. The Receiver shall be named as an additional insured on all such liability

policies. The Receiver shall also be named as an additional insured on all casualty policies.

Notwithstanding the foregoing, the Receiver has no duty to procure any form of insurance.

UTILITIES

IT IS FURTHER ORDERED that any utility company receiving notice of this Order shall

establish and provide utility service in the name of the Receiver as may be requested.

ENVIRONMENTAL


1. Nothing contained in this Order, nor the grant to or exercise of any powers

provided herein by the Receiver, shall cause the Receiver to be considered a past or present

owner, operator or other person potentially responsible or liable pursuant to any provision of the

Michigan Natural Resources and Environmental Protection Act (NREPA), including without

limitation, Part 201 or Part 231 of NREPA, the Comprehensive Environmental Response,

Compensation and Liability Act (CERCLA), 42 USC § 9601, et seq., the Resource Conservation

and Recovery Act (RCRA), 42 USC § 6901 et seq., or under any other statutory, regulatory,

common law or strict liability theory.

2. If a Plaintiff herein has a security interest or mortgage in assets of any Defendant

that the Court finds that such Plaintiff is engaged in a workout activity and has a secured

interest exemption as those terms are defined by Part 201, Part 213, CERCLA and RCRA, or

regulations promulgated thereunder, and its actions in seeking appointment of a receiver are

intended to protect the value and marketability of its collateral. Further said Plaintiff’s actions in

seeking appointment of a receiver or the Court’s sua sponte appointment of a receiver do not

amount to participation in the management of a facility as those terms are defined in Part 201,

Part 213, CERCLA and RCRA.

REGISTER OF DEEDS

IT IS FURTHER ORDERED that the Register of Deeds shall accept a certified copy of

this Order for recording, against any real property in which the Receiver determines that the

Business has an interest.

BOND OF RECEIVER

IT IS FURTHER ORDERED that the Receiver shall post a surety bond in the penal sum

of _____________________ and 00/100 Dollars ($________).

IMMUNITY OF RECEIVER

IT IS FURTHER ORDERED that the Receiver, while lawfully acting as such, is deemed

an agent of the Court and is entitled to and has immunity to the fullest extent of the law, from

and against any and all causes of action, suit, proceedings, claims, demands, losses, damages

and liabilities ("Claims"), in any manner arising from, in connection with or relating to the

Business and/or his conduct in the course of his acting in his court appointed capacity. Any

person employed or engaged by the Receiver in the performance of his duties hereunder shall

be afforded the same immunities afforded to the Receiver but shall not be immune for conduct

that constitutes gross negligence or conduct that is intentionally wrongful.

The Receiver shall not be liable for any claim, obligation, liability, action, cause of action,

cost or expense of the Business arising out of or relating to events or circumstances occurring

prior to this Order, including without limitation, any contingent or unliquidated obligations and

any liability for the performance of services rendered by third parties on behalf of the Business,

and any liability to which the Business, is currently or may ultimately be exposed under any

applicable laws pertaining to the ownership, use or operation of the Business (collectively all of

the foregoing are referred to as "Pre-Receivership Liabilities"). The Receiver shall not be

obligated to advance any funds to pay any Pre-Receivership Liabilities. Notwithstanding the

foregoing, Receiver may pay Pre-Receivership Liabilities from funds collected from the sale of

an Asset or operation of the Business if the Receiver deems it necessary and in the best

interest of the Receivership Estate.

PRIORITY OF CLAIMS AND DISPOSITION OF RECEIVERSHIP PROPERTY

IT IS FURTHER ORDERED that any and all monies, cash, funds, sale proceeds from

the sale of assets and/or property, and other receipts that come into the possession of the

Receiver, shall be applied to the following expenses in the following order of priority:

1. To pay the fees and expenses of the Receiver;

2. To pay and satisfy the obligations of the Business; and

3. To be distributed to such persons as may be directed by further Order of the

Court.

REPORTING


1. The Receiver is an agent of the Court and shall file periodic reports (“Reports”)

without necessity for taking oath. The first Report shall be for the period beginning on

_____________ and ending ______________, and thereafter Reports shall be filed quarterly.

All quarterly Reports shall be filed within fifteen (15) days of the end of a calendar quarter.

2. The Receiver Reports shall advise the Court as to all material actions taken by

the Receiver and any material concerns. The Receiver’s Report shall include an accounting for

cash receipts and disbursements.

3. Each such Report shall include copies of the Receiver’s invoices for the period

encompassed by the Report.

4. If no written objection to a Receiver’s Report is filed with the Court within seven

(7) days of delivery of notice of the date such Report is filed with the Court, the Court shall enter

an order approving the Report, the accounting and the Receiver’s fees and costs.

5. In the event a party files an objection to a Report, the Receiver shall file a

request for the Court to schedule a hearing to resolve the objection.

RECEIVER’S COMPENSATION


1. The Receiver shall be compensated at the rate of _________________ and

00/100 Dollars ($____.00) per hour and persons employed by the Receiver shall be paid

reasonable compensation for services rendered for the benefit of the Receivership Estate.

2. The Receiver shall make application for interim compensation with the filing of

each Report and upon entry of an order approving the Report, the account and the Receiver’s

fees and costs, the Receiver’s fees and costs shall become payable.

CONFIDENTIALITY


1. “Confidential Information” means all information regarding negotiations with third

parties and all other non-public information.

2. The parties to this action, their legal counsel, and all those in active concert or

participation with them who receive actual notice of this Order or otherwise, shall keep all

Confidential Information provided by Receiver confidential, and all such persons are prohibited

from disclosing any Confidential Information to anyone other than the parties to this action and

their legal counsel, agents or consultants without specific approval of the Receiver, an order of

this Court or as may be provided by law.

TERM

IT IS FURTHER ORDERED that the Receiver shall serve at the pleasure of this Court

until such time as the Court shall remove him or the Receiver has filed a final Report and the

Court shall discharge him.

RETENTION OF JURISDICTION

IT IS FURTHER ORDERED that this Court retains jurisdiction over any Judgment or

Orders of this Court previously entered that are not inconsistent with this Order, the directives of

the Receiver under this Order relative to the management of the Business, marshalling of

Business assets or recovery of Business assets in possession of any person.

THIS ORDER DOES NOT RESOLVE ALL PENDING CLAIMS AND DOES NOT

CLOSE THE CASE.

Dated: .

CIRCUIT COURT JUDGE

Dispute Resolution Board Hearing Rules and Procedures

1. Defined Terms

For the purposes of these Rules, terms not otherwise defined herein shall have the same meanings as assigned to them in the Contract.

2. General Authority of the Dispute Resolution Board (DRB)

Pursuant to the Contract, the DRB will implement these Hearing Rules and Procedures in a manner to make the hearing informal, efficient, and expeditious. The DRB, however, will retain the authority to conduct the hearing as it deems most appropriate, consistent with the Contract.

3. The Board and the Role of the Chair

The Dispute Resolution Board will be comprised of the following individuals: __________________________________________________________________________. The Chair of the DRB is __________________ who will be responsible for directing the course of the hearing and for keeping the official records of the hearing.

4. Pleadings and Service

Any party may file a Complaint requesting a Hearing of the DRB by serving a copy of the Complaint on the Chair and the other party. Within 10 calendar days a Response to the Complaint and any Counterclaims must be served on the Chair and the Complaining Party. A Response to any Counterclaim must be served upon the Chair and the Counterclaiming Party within 10 calendar days.

5. Scheduling of Hearing

Within seven (7) days receipt of the Response to the Complaint or Response to any Counterclaim, whichever comes later, the Chair will notify the parties of any additional pre-hearing submissions desired and of the hearing date. Except in circumstances that require immediate action, the hearing will be scheduled within 30 calendar days.

6. Hearing Location

Any DRB hearing will be conducted at a location convenient to the parties as determined by the Chair.

7. Preliminary Conference

The Dispute Resolution Board (DRB) may request that the affected parties participate in a telephone or in-person preliminary conference with the DRB. At the preliminary conference, the DRB shall provide the parties with organizational instructions and inform them of any issues that the DRB would like to have addressed at the hearing. The DRB may also address issues such as bifurcation of the merit and amount elements of the Dispute, the desired order of presentation of the parties' positions, the persons who may need to be present at the hearing, and any other matters that would promote the efficient and expeditious processing of the Dispute.

8. Exchange/Submission of Documents and Exhibits

The DRB may require the parties to produce documents at or before any hearing. At least 14 days prior to the scheduled hearing date, the DRB will notify the parties in writing of any documents that may be required to be produced for the hearing.

At least ten (10) days prior to a scheduled hearing date, the parties shall exchange and simultaneously submit to the DRB a list of each document or exhibit that each party intends to submit, use, or refer to in its presentation at the hearing. Each party shall include with the list a copy of each document or exhibit not included in prior submissions to the DRB.

a. The parties are encouraged to submit exhibits, charts, or summaries of documents in order to facilitate the DRB's understanding of the issues in the Dispute and to avoid the submission of voluminous records that may not be necessary for the DRB's determination. At least ten (10) days prior to a scheduled hearing date, such documents also shall be exchanged with all other parties to the Dispute and submitted to the DRB.

9. Preparation for Dispute Resolution Board Hearing

1. The Parties will prepare individual, stand alone statements of position describing the dispute, the Party's position, the contractual justification for that position, and any reference materials.

Following are suggested guidelines for statements of position and related documentation.

a. The Parties should attempt to agree to a simple statement of the Dispute, typically limited to one paragraph.

b. The statement of position should be structured to be a stand-alone document that clearly states the Dispute, states the claim amount in time and in dollars if a quantum dispute, states the Party's position in entitlement disputes, clearly defines the contractual justification for the stated position in entitlement disputes, clearly defines the contractual justification for the stated position and the reasoning as to why the other Party's position is not contractually correct and appropriate, including all necessary exhibits referred to in the statement of position and in the planned hearing testimony.

c. The Parties should stipulate to as many facts, dates and quantities as possible and include this stipulation in their statement of position.

d. The Parties should present their entitlement position in the dispute, with specific references to appropriate contractual documents that support their position and include copies of those documents in the statement of position.

e. If quantum is to be considered in the same dispute meeting, the Parties should present their quantum position in the dispute case with specific analysis of the comparative cost, productivity, or timeliness issue.

f. The Parties should not send to the DRB or to each other any further exhibits or correspondence regarding the dispute, without the prior approval of the DRB, between the time the statement of position has been sent out and the hearing.

g. The statement of position should be hand-delivered to the other party and mailed, overnight mail, no acceptance signature required, to the DRB members 14 days prior to the established hearing date.

h. These guidelines are subject to change by the DRB to fit the circumstances of a particular dispute.

10. Evidence/Burden of Proof

The DRB will not be bound by the judicial rules of evidence or burden of proof. The DRB may limit the presentation of documents or oral statements when it deems them to be irrelevant or redundant or when it determines it has sufficient understanding of the facts underlying a claim or defense to make its decision.

11. Presentation of Dispute

Each party shall make an initial presentation of its position with respect to the Dispute or defense and one or more rebuttals to any assertion by another party, until the DRB determines that all aspects of the Dispute have been addressed adequately. The DRB may limit the presentation of documents or oral statements when it considers them to be irrelevant or redundant. The DRB members shall control the hearing and guide the discussions of issues by asking questions of the parties in order to obtain expeditiously all information the DRB considers necessary to make its decision. The DRB may permit the questioning of one party by another party only if it would facilitate the presentation or clarification of an issue in the Dispute.

12. Representatives Required to be Present at Meetings

Authorized representatives of the parties shall attend the hearing. Except as provided in this Section no other person may attend the hearing, except with permission of the DRB granted after hearing the objections of all participating parties.

At least ten (10) days prior to a scheduled hearing date, the parties shall exchange and submit simultaneously to the DRB a list of their respective witnesses and representatives planning to attend the meeting. The list should contain the following information: the person's name, title, professional affiliation, and a brief summary of the matters that the person will address.

13. Participation of Counsel and Independent Experts

If a party intends to be accompanied at the hearing by counsel or by an independent expert, such party shall notify all other parties in writing at least ten (10) days prior to the scheduled hearing date and shall include such person on the list required by Rule 11. If a party has not notified the others within the appropriate time period that it intends to be accompanied by counsel or by an independent expert, but receives another party's notice that it will be so accompanied, the recipient party may then elect to be accompanied by counsel or independent expert if it notifies the other parties and the DRB, in writing, at least five (5) days prior to the scheduled meeting date.

Unless the DRB determines that it would assist resolution of the Dispute, counsel may not (a) examine directly or by cross-examination any witness, (b) object to questions or factual statements made or related during the meeting, and (c) make motions or offer arguments.

14. Consolidation/Bifurcation of Disputes

The DRB will notify all affected parties in writing if it decides to consolidate Disputes arising out of the same circumstances or involving similar factual or legal issues, or if it decides to bifurcate a Dispute into, first, a determination as to merit and, second, if necessary, a determination as to amount. The parties shall conform their submission of documents and presentations at the hearing to be consistent with such consolidation or bifurcation as determined and instructed by the DRB.

Alternatively, the DRB may decide to issue a decision as to merit only and request that the parties attempt to determine the amount. If the parties cannot do so, the DRB may schedule further meetings to address any unresolved issues.

15. Disputes involving Claims of Third Parties

The parties shall identify clearly in all submissions, each portion of the Dispute that involves a third party claim and the identity of the related third party. The party also shall ensure that all documents required by these Rules and Procedures are timely submitted to the DRB.

At any DRB meeting on a Dispute that includes one or more third party Claims, the party shall require that an authorized representative of each third party involved in the Dispute with direct and actual knowledge of the facts underlying the third party claim attend to assist in presenting the third party claim and to answer questions raised by the DRB members or the party.

16. Failure to Comply with Meeting Rules and Procedures

A party's failure to comply with the DRB's Meeting Rules and Procedures and other requirements, or use of such rules to obstruct the process, may be considered by the DRB in making its decision.

17. DRB Deliberations

After the close of hearing on a Dispute, the DRB will meet to formulate decision and/or recommendations for resolution of the Dispute. All DRB deliberations will be conducted in private and will be confidential.

18. Issuance of Decision or Recommendations

Within 14 days after the close of the hearing, the DRB decision and/or recommendations will be forwarded to the parties.

19. Affect of Decision and/or Recommendations

The decision of the DRB will be binding on the parties unless and until the parties enter into a resolution of the Dispute or otherwise appeal the decision of the DRB pursuant to the next stage of the dispute resolution process set forth in the Contract. In the event of any appeal to a court, arbitration or administrative agency, the decision of the DRB will not be admissible or have any precedential affect. The recommendations, if any, made by the DRB are solely intended to assist the parties in reaching a mutually satisfactory resolution of the Dispute.

Checklist—Mini-Trial Procedure

1. Do the parties desire a confidentiality agreement that will govern all aspects of the mini-trial including any advisory verdict?

2. Will the mini-trial precede another ADR event such as a mediation? If so, how soon will the other ADR event be conducted after the mini-trial?

3. If the mini-trial will precede a mediation, will the mediator serve as the judge if the mini-trial is to an advisory jury or act as a neutral on the panel if it is a mini-trial to party representatives; if not, is there agreement as to who will serve as the judge or neutral?

4. If a mini-trial is to party representatives, is it agreed that the representatives who attend will have full settlement authority? If to an advisory jury, will representatives with settlement authority be required to attend the entire mini-trial?

5. If a mini-trial to an advisory jury:a. From what pool will the jurors be drawn from?b. Who will solicit the potential jurors to serve and how?c. How many jurors will be utilized?d. Will they deliberate together and, if not, how many groups will be they be divided into? e. What amount will the jurors be paid to serve and who will pay their juror fees?f. Will the deliberations of the jurors be videotaped and made available to counsel for potential

trial preparation?g. Will jury consultants be permitted to be present during voir dire and watch the juror

deliberations in real time?h. Will the decision of the jurors be disclosed immediately or kept confidential and only

disclosed if there is a subsequent impasse in settlement negotiations?

6. Will a facility be required that will permit the parties to observe the jury deliberations in real time?

7. How long will the mini-trial last? How much time will each party receive to present his or her case?

8. Will each party present a set of jury instructions and a verdict form, or will the parties be required to develop a joint set of jury instructions and a verdict form?

9. What evidence, demonstrative and otherwise, will be presented to the jury or the panel of representatives?

10. Will a court reporter be permitted to be present? Who will pay for his or her services?

11. Will voir dire be permitted? How many jurors will be subjected to voir dire? Who will conduct the voir dire? How extensive will the voir dire be? How many challenges will be given to each party?

12. Will the parties agree to ground rules for the mini-trial that will be enforced by the judge:a. Will witnesses be permitted?b. How many? c. Will direct examination and cross-examination be conducted? d. Will counsel be permitted to read deposition transcripts or present video depositions?e. Will medical reports or visual materials be permitted? f. Will demonstrative exhibits be permitted?g. Will time limits be imposed for each stage of the mini-trial?

13. Are there any stipulated facts? To what other agreed-upon facts may the attorneys refer in their arguments? How will the parties address disputed evidentiary issues before the commencement of the mini-trial? Will evidentiary objections be permitted in the proceeding?

14. Will the jury be given a choice of returning a consensus verdict or a special report anonymously listing the view of each juror as to liability and damages?

15. Will the jurors be told that their verdict is advisory? If yes, at what point in the proceedings will this be explained to them?

16. How long will the jury be permitted to deliberate?

17. After the jury announces its verdict, will the verdict be kept confidential by the judge and only disclosed to break an impasse at a subsequent ADR event; if announced immediately to the parties will the attorneys be permitted to ask the jurors how they reached their verdict?

18. Will settlement discussions between the parties take place immediately after the completion of the summary jury trial, or will an ADR event be scheduled for a later date?

Sample Meet and Confer Provision

(The typical first step in a “layered” dispute resolution clause)

Any controversy or claim arising out of or relating to this Agreement, or the breach or anticipated breach of this Agreement, shall be the subject of a meeting attended by the personal representatives of the parties. The personal representatives who must personally attend this meeting will have full authority to resolve the controversy or claim.

Any party to this Agreement may request such a meeting upon written notice to the other party and the meeting must be held within fifteen (15) business days of the receipt of the written request. Within ten (10) business days prior to the meeting, any party may request the production of information in the possession of the other party that may be of assistance in conducting the meeting required by this paragraph. The party receiving such a request for information is encouraged to provide the requested information that it determines is reasonable and appropriate within five (5) days of the receipt of the written request for information.

The personal meeting must be held at the offices of __________________ or such other location as agreed to by the parties.

Counsel for the parties may [not] be present during the meeting of the parties.

During the meeting the parties will engage in good faith negotiations in an effort to find a mutually satisfactory resolution that serves their respective and mutual interests. The parties agree that all discussions and statements made by the parties during this meeting are confidential in furtherance of settlement and, in accordance with all state and federal law governing confidentiality, will not be admissible in any subsequent proceedings. If the party representatives are unable to agree to a mutually satisfactory resolution, then [upon the agreement of the parties __________________ shall assist the parties in resolving the dispute [or such other mediator as may be agreed to by the parties]; otherwise] the controversy or claim may proceed to the next step of the dispute resolution process as provided in this Agreement.

CONFIDENTIALITY AGREEMENT FOR RESOLUTION SESSION

WHEREAS, a special education due process hearing is currently pending in the matter of ;

WHEREAS, the parties wish to engage in settlement discussions through a resolution session;

THEREFORE, the parties agree as follows:

Confidentiality. To enable the parties to freely discuss all aspects of their dispute and to assist the parties in reaching a voluntary resolution of their dispute, the parties agree that discussions during the resolution session shall be deemed settlement negotiations, nothing said or disclosed, nor any document produced, which is not otherwise independently discoverable, shall be offered as evidence or used for impeachment or any other purpose in any current or future due process hearing or litigation, regardless of the forum.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date below.

Dated BY:

____________________________

Petitioners

Petitioners’ Legal Counsel

Respondent

Respondent’s Legal Counsel

COLLABORATIVE PRACTICE PARTICIPATION AGREEMENT

AMONG: Party A

-and-

Attorney for Party A

-and-

Participant – Party B

-and-

Attorney for Party B

1.0. GOALS

1.1. We, the Participants, believe that it is in our best interests and the best interests to reach an agreement regarding our Dispute through the collaborative process rather than by going to Court.

1.2. The Dispute is described more fully below:__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

1.3. We agree to use the Collaborative Practice process to resolve the Dispute. Collaborative Practice is based on:

honesty in all aspects of informal discovery and responding to questions ; satisfying the interests of both Participants; cooperation; integrity; professionalism; dignity; and respect.

1.4. Collaborative Practice does not rely on Court-imposed solutions.

1.5. Our goals are: to resolve the Dispute; to eliminate the negative economic, social and emotional consequences of litigation; and to find solutions that are acceptable to both of us.

2.0. WE WILL NOT GO TO COURT

2.1. Out-of-Court. We commit ourselves to settling this case without going to Court.

2.2. Joint Meetings. We agree to engage in informal discussions and conferences to settle all issues. All communication during joint meetings will focus on the resolution of the Dispute. We are free to discuss issues with each other outside of the joint meetings if we both agree and are comfortable doing so. We will not “spring” discussions on the other side outside the presence of our attorneys. We are also free to insist that any discussions be reserved for the joint meetings where both attorneys are present. We understand and acknowledge that the costs for joint meetings are substantial and require everyone’s cooperation to make the best possible use of available resources. Thus, we commit to being fully prepared for each meeting.

2.3. Legal Documents. Neither of us or our attorneys will permit any motion or document to be served or filed which would initiate court intervention during the Collaborative Practice process pending final agreement. If a Summons is filed with the Court, a Request for Deferral will be filed by our attorneys.

3.0. WE WILL NEGOTIATE IN GOOD FAITH

3.1. Good Faith Negotiation. We understand that this process will involve good faith negotiation.

3.2. Legal Issues. The process is designed to resolve all aspects of the dispute including: _______________; _______________; _______________; _______________; and Other issues we may agree to address.

3.3. Disclosure. We agree to give full and complete disclosure of all information relevant to the resolution of the Dispute whether requested or not. Any request for disclosure of information will be made informally. We will provide this information promptly.

We acknowledge that by using informal discovery we will not use formal investigative procedures and methods that would be available to us in the litigation process. We agree to use these informal measures with the specific understanding that in return we each can rely on the other making full and fair disclosure of all information necessary for a fair settlement. We each may require the other to sign a sworn statement. Participation in the Collaborative Practice process, and the settlement reached, is based upon the assumption that we have acted in good faith and have provided complete and accurate information to the best of our ability.

3.4. Interest Based Negotiations. We agree to negotiate based on interests and not positions.

3.5. Balanced Approach. We will be expected to take a balanced approach to resolving all differences. Where our interests differ, we will each use our best efforts to create proposals that are acceptable to both of us.

3.6. Use of the Law. None of us will use threats of litigation as a way of forcing settlement. We may however discuss the likely outcome of going to Court and the law.

3.7. Negotiate with Integrity. We will maintain a high standard of integrity and specifically shall not take advantage of any miscalculations or mistakes of others, but shall immediately identify and correct them.

4.0. USE OF OTHER COLLABORATIVE PROFESSIONALS

4.1. We understand that we may engage the use of experts and a mediator to assist us in this process and work with our attorneys as a team.

4.2 . When other Collaborative Professionals are retained the Participants will sign a Participation Agreement with that Professional which will be attached to this Participation Agreement.

5.0. EXPERTS

5.1. We agree to use neutral experts for any issue that requires expert advice and/orrecommendation. This does not prevent either Participant from using an expert to educate them on any issues in this matter, provided such use is disclosed to all Participants and professionals.

5.2. We will retain any neutral expert jointly unless we agree otherwise in writing.

5.3. We agree to direct all experts to assist us in resolving our differences without litigation.

5.4. Any report, recommendation, or documents generated by, or any oral communication from, the neutral expert shall be shared with each of us and our respective attorneys and unless otherwise agreed in section 12.2 below, covered by the confidentiality clause of this Agreement.

6.0. FEES AND COSTS

6.1. We agree that our Collaborative Practice professionals are entitled to be paid for their services. We agree that each of us will pay our respective attorneys, and be jointly responsible for the fees of any other collaborative professionals, unless other agreements are reached.

6.2. We will agree in advance as to the source of payment for the retainer or other fees of any expert or Collaborative Professional.

7.0. ENFORCEABILITY OF AGREEMENTS

7.1. Temporary Agreements. If either of us requires a temporary agreement for any purpose, the agreement will be put in writing and signed by us and our attorneys. Any written temporary agreement can be submitted to the Court as a basis for an Order and enforced, if necessary.

7.2. In Case of Withdrawal. If either of us or either attorney withdraws from the Collaborative Practice process, any written temporary agreement may be presented to the Court as a basis for an Order, which the Court may make retroactive to the date of the written agreement.

8.0. TERMINATION OF PROCESS PRIOR TO SETTLEMENT

8.1. Termination. Participants may unilaterally terminate the Collaborative Practice process at any time for any reason or for no reason at all. If one of us decides to terminate the process, the withdrawing party shall provide prompt written notice to that party’s attorney, who in turn will notify the other attorney in writing. The Collaborative Practice Process terminates when the attorney representing the non-terminating party receives written notice of termination.

8.2. Waiting Period. Upon termination from the process, there will be a 30-day waiting period, absent an emergency, before the scheduling of any court hearing, to permit us to retain new attorneys and to make an orderly transition.

8.3. Previous Agreements. All temporary agreements will remain in full force and effect during the 30-day period.

8.4. No Surprise. The intent of this section is to avoid surprise and prejudice to the rights of the non-withdrawing Participant.

8.5. Presentation to Court. Accordingly, we agree that either of us may bring this provision to the attention of the Court in requesting the continuance of a hearing scheduled by the other party or that party’s attorney during the 30-day waiting period.

9.0. ABUSE OF THE COLLABORATIVE PRACTICE PROCESS

9.1. We understand that both attorneys will withdraw from this case if either attorney learns that either of us has abused this process. Some examples of abuse of process include:

withholding or misrepresenting relevant information; failing to disclose the existence or true nature of relevant facts; and failing to participate collaboratively in this process.

10.0. WITHDRAWAL OF COLLABORATIVE ATTORNEY

10.1. If either attorney withdraws from the case, the other attorney must also withdraw, unless a withdrawing attorney is replaced by another Collaborative Practice attorney. If one of our attorneys decides to withdraw from the process, that attorney will promptly notify their client and the other attorney in writing.

10.2. If the attorney withdrawal results in the termination of the process as set forth in paragraph 10.1 above, the provisions of paragraphs 8.2 to 8.5 above shall apply.

10.3. If an attorney-party relationship is terminated, and that party wishes to continue in the Collaborative Practice process, that party shall provide prompt written notice of this intention. Both Parties and their new lawyer(s) will sign a new Participation Agreement within 30 days of the Participants giving notice. If a new Agreement is not signed within 30 days, the other party will be entitled to proceed as if the Collaborative process was terminated as of the date written notice was given.

11.0. DISQUALIFICATION

11.1. Disqualification in Subsequent Matters. After the signing of the Participation Agreement neither Collaborative attorney may represent either Party in any non-collaborative matter where the Parties have adverse interests.

12.0. CONFIDENTIALITY

12.1. Communications in Court Proceedings. All communication and information exchanged within the Collaborative process is confidential.

12.2. Private Communications. Collaborative Practice is based upon open and honest communications. However, just as in conventional legal practice, there will be private communications which take place between each client and his or her respective attorney and these communications are protected by the Attorney-Client privilege. In Collaborative Practice clients should assume that all information which is relevant to the issues will be disclosed by their attorneys. If one Participant obtains privileged communications (electronic, voice and/or written communication between a party and his or her attorney) he or she must disclose that fact to the other party and his or her own attorney. If one party copies or forwards privileged communication to a Collaborative professional, that Collaborative professional must disclose receipt of such privileged communication to the attorney involved in the communication.

12.3. Communications Between Collaborative Professionals. For Collaborative professionals to work most efficiently and effectively together for the benefit of the clients, the Participants agree that Professionals may communicate among themselves and that those communications may not necessarily be passed along to the Participants.

12.4. Communications With Persons Outside the Collaborative Process. All communication and information exchanged within the Collaborative process shall remain private and shall not be exchanged by the parties or professionals with any other persons without the written agreement of both parties. This provision does not prevent either party from disclosing such information as may be needed to obtain a second opinion from another attorney.

12.5. Subsequent Litigation. If subsequent litigation occurs, the parties agree that:

12.5.1 Neither will introduce as evidence in court any written or oral information generated or documents prepared during the Collaborative process, including e-mails, voice mails, letters, progress notes, session notes, budgets and projections and proposals for settlement. Only documents such __________________.

12.5.2 Neither will introduce as evidence in court nor require the production of any reports, opinions or notes prepared by any other professional in the Collaborative process, except as follows: professional reports may be used in the event that the Collaborative process terminates, on written consent of both Participants.

12.5.3 Neither will compel or subpoena either lawyer or any other professional retained in the Collaborative process to attend court to testify or attend a deposition to testify under oath about matters discussed in the Collaborative process.

12.5.4 Only the fact that Collaborative process was attempted and final settlement was not reached may be introduced into evidence in court, unless we agree otherwise, in writing.

13.0. CAUTIONS

We understand and acknowledge the following:

13.1. Commitment. There is no guarantee we will successfully resolve the Dispute by using Collaborative Practice. We understand that our success is primarily dependent upon our commitment to the process.

13.2. Attorney Role. Although we pledge to be respectful and to negotiate in an interest-based manner, we are each entitled to assert our respective interests, and our attorneys will help us do this in a productive manner. We understand that each attorney has a professional duty to represent his or her own client diligently and is not the attorney for the other. This is so even though the attorneys share a commitment to Collaborative Practice.

14.0. ACKNOWLEDGEMENT

14.1. We and our attorneys acknowledge that we have read this Agreement, understand its terms and conditions, and agree to abide by them.

14.2. We understand that by agreeing to this alternative method of resolving our dissolution issues, we are giving up certain rights, including the right to formal discovery, formal court hearings, and other procedures provided by the adversarial legal system.

14.3. We have chosen the Collaborative Practice process to reduce emotional and financial costs, and to generate a final agreement that addresses our concerns. We agree to work in good faith to achieve these goals.

15.0. PLEDGE

WE HEREBY PLEDGE TO COMPLY WITH AND TO PROMOTE THE SPIRIT AND WRITTEN WORD OF THIS PARTICIPATION AGREEMENT.

COLLABORATIVE PARTICIPATION AGREEMENT

We, and , who are husband and wife, have chosen to use the principles of Collaborative Practice to settle all of the issues arising from the dissolution of our marriage.

This document describes the goals and principles of Collaborative Practice. It will be signed by all members of our Collaborative Team, which initially includes each of us, our attorneys and our divorce coach. We understand that our Collaborative Team may be expanded to include a mediator, financial coaches, a financial specialist, and other professionals we agree to add to our Collaborative Team. Each professional member of our Collaborative Team will be a graduate of a Collaborative Practice training program. If Collaborative Team Members are added, each will sign a copy of this agreement.

I. GOALS

We acknowledge that the essence of Collaborative Practice is the shared commitment by all Collaborative Team Members to achieve effective resolution without litigation. The Collaborative Process is not intended to advance or promote any particular type of result, but to allow us to come to the agreement that works best for us at this stage of our lives, and with recognition of how agreements reached now can affect our future choices.

Our goal is to minimize the negative consequences often associated with divorce and to resolve our issues in an atmosphere of honesty, cooperation, integrity and professionalism.

For these reasons, we agree to use the Collaborative Process.

II. NO COURT INTERVENTION

All of our Collaborative Team Members commit to working cooperatively to settle our case without court intervention.

A court action has been filed. We agree to dismiss the case in order to give us time to complete this dispute resolution process.

III. CAUTIONS

We understand there is no guarantee that the Collaborative Process will be successful in resolving our issues, but we commit to giving it our best efforts.

We understand that the process cannot eliminate the disharmony, distrust, and differences that may have existed in the past, but we commit to applying our best efforts to create an atmosphere of harmony, trust and cooperation as we move forward.

© COLLABORATIVE PRACTICE INSTITUTE OF MICHIGAN 2013

We understand that we will assert our respective interests and that our respective practitioners will help each of us to do so. We commit to doing so in the spirit of collaboration.

We understand that we are foregoing the use of formal court procedures available under the adversarial system.

We understand that each of us has an attorney who has a professional duty to diligently represent only his or her client. No attorney-client relationship is created between one client’s Collaborative Attorney and the other client by entering into this Agreement or by the Collaborative Attorney’s signature below. At the same time, the attorneys we have chosen share a commitment to the process described in this document.

IV. NEGOTIATION IN GOOD FAITH

We understand that the Collaborative Process, even with full and honest disclosure, will involve vigorous good faith negotiation. We commit to try to focus on the issue or issues at hand, to not disparage or belittle, and to keep an open mind to new ideas. We recognize that listening is an important part of negotiation.

Because we have different needs, we can expect that we may have disagreements. We understand that our attorneys will encourage us to use our best efforts to create options that meet our fundamental needs. We understand that reaching a settlement is likely to require compromises from each of us and that proposing compromise is not a sign of weakness.

In our meetings, we might discuss the parameters of Michigan domestic relations law, and we will strive to reach creative settlements unique to our family that may not necessarily follow these parameters. However, neither we nor our attorneys will threaten litigation as a way of forcing settlement.

V. DISCLOSURE OF INFORMATION

We agree to promptly make a complete, full and honest disclosure of all necessary and pertinent information requested. We will not use formal discovery procedures (depositions, written questions answered under oath, subpoenas) unless we specifically agree to them in advance.

We acknowledge that by using informal disclosure, we are giving up certain rights for the duration of the Collaborative Process. We give up these measures with the specific understanding that both of us will make full and fair disclosure of all assets, income, debts and other relevant information, and that if requested, we will verify these with sworn statements.

We acknowledge that our participation in the Collaboration Process and the settlement we hope to reach are based upon the assumption that both of us will act in good faith and will provide complete and accurate information to the best of our ability. There is a duty to correct any errors, misinformation, or omissions in the Collaborative Process.

VI. PARTICIPATION WITH INTEGRITY

We will maintain a high standard of integrity. We will not take advantage of each other. We will not mislead, or allow recognized misunderstandings to continue. Instead, we will identify and correct any miscalculations or inadvertent mistakes of others.

We agree, as do our Collaborative Team Members, to treat all participants with respect and dignity. We will try to be understanding of each other’s perspectives, even when we disagree.

We agree to be respectful of the time and investment of each Collaborative Team Member. We will do our best to make time for the meetings necessary to keep the Collaborative Process moving, to be prepared for each meeting by having done the homework we agreed to do between meetings, to be on time for all meetings, and to provide timely notice if it is not possible to attend a scheduled meeting or provide requested information necessary for a meeting to be productive.

VII. PRESERVATION OF STATUS QUO

We agree that we shall continue to maintain the financial status quo arrangements and continue to handle finances in the same manner as has been customary for our family for the past six months, including continuing the management of depositing of paychecks, use of assets, spending and payment of bills.

We agree that commencing immediately, neither party will borrow against, cancel, transfer, dispose of, or change the beneficiaries of any pension, retirement plan, or insurance policy or permit any existing coverage to lapse, including life, health, automobile, homeowners, renters or disability held for the benefit of either party without the prior written consent of the other party.

We agree that commencing immediately, neither party will change any provisions of any existing trust or will or execute a new trust or will without the prior written consent of the other party or an order of the court.

We agree that commencing immediately, neither party will sell, transfer, encumber, conceal, assign, remove or in any way dispose of any property, real or personal, belonging to or acquired by either party, without the prior written consent of the other party, except in the usual course of business or investing, payment of Collaborative Team Member fees and costs, or for the reasonable necessities of life.

We agree that, without the prior written consent of the other, neither party will incur any further debts that would burden the credit of the other, including but not limited to, further borrowing against any credit line secured by the marital residence, unreasonably using credit cards or cash advances against credit or bank cards or incurring any liabilities for which the other may be responsible, other than in the ordinary course of business, for the necessities of life or the continuation of the Collaborative Process.

We agree that if either of us has taken any of the above actions within the past six months, we will immediately disclose that fact to the other party and the team.

VIII. CHILD(REN)’S ISSUES

We recognize that our courteous, cooperative, and predictable behavior toward each other is our child(ren)’s best insurance of a healthy future. Our goal is to promote a caring, loving, and involved relationship between our child(ren) and each of us. We will insulate our child(ren) from our disputes, and we will not discuss the details of our divorce with them. We acknowledge that inappropriate communication regarding our dissolution is harmful to our child(ren).

As part of the Collaborative Process, we will create a parenting plan that will address the following issues:

▪ Allocating parenting responsibilities▪ Parenting time▪ Decision making▪ Communication▪ Support▪ Problem solving

In doing this, we will make every effort to reach solutions that promote the best interests of our child(ren) and are respectful of our individual strengths, abilities and limitations. We will work with our Collaborative Team Members to quickly mediate and resolve any issues. We understand our Collaborative Team includes divorce coaches and may include a child specialist to help us focus on our child(ren)’s needs. If necessary, the child specialist can speak with the child(ren) to help us understand each child’s concerns and guide us toward an appropriate parenting plan. As part of this process, we may reach agreements on how to discuss the parenting plan and other issues with our child(ren).

We understand that parents sometimes seek a custody evaluation from a mental health professional. Unless we both agree in writing, we will not engage such an evaluator.

IX. PARENTING RESOURCES

We understand that there are many places for us to obtain information about co-parenting during and after divorce, including from our divorce coaches, the Smile Program, uptoparents.org, ourfamilywizard.com, and many books. We agree to explore resources as recommended by our Collaborative Team Members.

X. PROFESSIONAL FEES AND COSTS

We agree that our attorneys and other Collaborative Team Members are entitled to be paid for their services, according to the terms set out in separate fee agreements signed with each Collaborative Team Member. We understand that an outstanding balance due to any Collaborative Team Member may adversely affect one party’s access to advice and counsel as compared to the other party, and thus agree we will maintain current payment of all Collaborative Team Members’ fees. We will decide from which accounts the Collaborative Team Members will be paid. We also understand that:

Collaborative Team Members are independent of one another and have no financial connections, fee-sharing, or referral fee arrangements with one another; and

No Collaborative Team Member can continue to provide services without payment.

XI. EXPERTS AND CONSULTANTS

If non-team member experts and/or consultants are needed, we will retain them jointly as neutrals, unless we and our attorneys agree otherwise in writing. This Collaborative Participation Agreement alone will not prohibit use of these non-team member experts or consultants or their work product if the Collaborative Process is terminated.

XII. CONFIDENTIALITY

We understand that our Collaborative Team Members will treat as confidential all information provided during the Collaborative Process to anyone outside the team, consistent with their professional ethical obligations (such as reporting suspected child abuse). There will often be times when our

Collaborative Team Members must and will communicate with each other for the team to work effectively, including unencrypted E-mail, facsimile, and other electronic methods of communication as necessary. We authorize our Collaborative Team Members to communicate freely with each other during and after this Collaborative Process.

Each of us will decide with our own attorney and coach how to share information with the Collaborative Team. We understand that if we instruct an attorney or coach to withhold from the Collaborative Team information that he or she believes is required to be disclosed, the attorney or other Collaborative Team Member may be required to withdraw from the process.

If the Collaborative Process is terminated and we begin litigation or another process for dispute resolution we specifically agree that neither of us will call as a witness either attorney, coach or any other Collaborative Team Member. We consider all Collaborative Team Member communications throughout the Collaborative Process to be ongoing compromise and settlement negotiations and thus privileged, confidential and inadmissible in court. This rule does not apply to any written sworn statements as to financial status or this Collaborative Participation Agreement.

XIII. OUR RIGHTS AND OBLIGATIONS PENDING SETTLEMENT

Although we have agreed to work outside the judicial system, we agree that:

We may continue to use our income and assets to meet our ongoing costs of living, but we will not otherwise hide, damage, dispose of or encumber any assets unless we mutually agree, and we will not unreasonably or unnecessarily increase the debt.

We will not harass each other.

We will not disparage each other.

We will keep all of our current insurance coverage in effect. We will not change any coverage or any beneficiary designation. We will disclose any changes that may have been made within the last six months.

We will not hire private investigators or otherwise place each other under surveillance or investigation.

We understand that if either of us violates any of these provisions, it may undermine the Collaborative Process, make it more difficult to reach our mutual stated goals, and may lead to termination of the process.

XIV. TERMINATION OF THE COLLABORATIVE PROCESSAFTER SETTLEMENT

When we reach and sign a final agreement on all issues, we will then submit to the jurisdiction of the family division of the circuit court of the county in which we principally reside. We will ask the court for dissolution of our marriage. We will file jointly if the court rules permit; otherwise, we will agree upon which of us will file. Our final agreement will be incorporated into our Judgment of Divorce. The attorneys who have been a part of the Collaborative Process may prepare the documents necessary to give effect to our agreements. Outside counsel may be used to draft Domestic Relations Orders. Entry of the Judgment of Divorce terminates the Collaborative Process, but the commitments contained herein remain

in effect. Neither party may re-engage the services of a team member, except with notice to the other party.

If the parties cannot agree on entry of a Judgment of Divorce consistent with their signed final agreement, the parties shall proceed to represent themselves or retain separate litigation counsel. The Collaborative attorneys shall take all necessary ethical steps to terminate their representation.

XV. TERMINATION OF THE COLLABORATIVE PROCESSWITHOUT SETTLEMENT

Either of us may terminate the Collaborative Process for any reason with notice to the other party’s attorney and the other party. We both commit, however, not to do so lightly, out of mere frustration or impatience, or to threaten to terminate the Collaborative Process to gain a perceived advantage in negotiations.

We understand that each of us has an affirmative duty to provide information and to act fairly in this process. Our attorneys and all other Collaborative Team Members have an affirmative duty to recommend termination of the Collaborative Process and withdraw from the case if (after reasonable investigations and/or discussion) they believe we have acted in violation of our duties by:

withholding or misrepresenting financial information;

secretly disposing of property;

unreasonably or unnecessarily increasing debt;

acting in a manner that undermines the Collaborative Process or taking unfair advantage of the Collaborative Process;

filing a court action prior to the completion of the Collaborative Process, unless we otherwise agree.

XVI. NOTICE REQUIREMENTS IN CASE OF WITHDRAWALBY PARTY OR ATTORNEY

If one of us or our attorney withdraws from the Collaborative Process, the person withdrawing will immediately give written notice to all other Collaborative Team Members. The party whose Collaborative Team Member withdraws may continue in the Collaborative Process if he or she retains a new Collaborative Team Member who agrees to the terms of the Collaborative Process and signs the Collaborative Participation Agreement.

Unless circumstances require emergency court relief, we both agree that we will not file a court action or take any court action in a pending case until at least 30 days after notice is given to allow the other party a reasonable opportunity to retain new counsel. We agree that this 30-day provision may be brought to the attention of a court in order to request a postponement of a hearing. All temporary agreements will remain in effect during this transition period.

XVII. DISQUALIFICATION BY COURT INTERVENTION

We understand that both attorneys, including their respective firms, will be disqualified from ever representing either of us against the other in any adversarial or contested court proceeding.

We also understand that all Collaborative Team Members that are or were a part of this Collaborative Team will be disqualified as witnesses and their work product will be inadmissible as evidence in any court proceeding unless we agree otherwise in writing.

XVIII. POST JUDGMENT ISSUES

Should post-Judgment disputes arise or either of us refuses to honor our final agreement, we will consider resolving the issues between us by returning to the Collaborative Process. If that is not successful, or if either of us is unwilling to participate in the Collaborative Process at the time of the post-Judgment dispute, only our final agreement, as well as our Judgment, may be presented to a court for enforcement.

Non-party members of the Collaborative Team cannot participate in post-Judgment litigation, as counsel, witnesses or otherwise.

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XIX. PLEDGE

All of us who sign this agreement, including those who sign it in counterparts, pledge to comply with and to promote the spirit and written word of this document.

_________________________________ ______________________________Husband/Wife Husband/WifeDated: ___________________________ Dated:_________________________

Each undersigned attorney hereby confirms our representation of our respective clients in the Collaborative law process:

________________________________ _______________________________________________ ________________Attorney for _____________ Attorney for _____________

Dated:___________________________ Dated:__________________________

_________________________________ ___________________________________________________ __________________Divorce Coach Divorce Coach

Dated:____________________________ Dated:_____________________________

_________________________________ ___________________________________________________ __________________Financial Neutral Child Specialist

Dated:____________________________ Dated:_____________________________

STATE OF MICHIGANIN THE CIRCUIT COURT FOR THE COUNTY OF _________

________________________________________________________________

JANE DOE, File No. 14-00000-DM

Plaintiff, Hon.

v.NOTICE OF EXECUTION OF COLLABORATIVE PARTICIPATION AGREEMENT AND APPLICATION FOR STAY

JOHN DOE

Defendant.

Attorney for Plaintiff Attorney for Defendant

NOTICE OF EXECUTION OF A COLLABORATIVE PARTICIPATION AGREEMENT AND APPLICATION FOR STAY

NOW COME the parties, by and through their attorneys, and pursuant to Section 6 of the uniform collaborative law act (Act Number 159 Public Acts 2014) (MCL 691.133 et seq.) hereby provide the court with notice of the execution of a Participation Agreement. This notice acts as the application for stay of the proceeding, subject to:

1. Section 3 (requirements for a valid Participation Agreement)

2. Section 7 (permits court to issue emergency orders)3. Section 8 (allows the court to approve an agreement

resulting from a Collaborative law process).

Dated: ________, 2014 ____________________________________Attorney for Plaintiff

Dated: _______, 2014____________________________________

EXHIBIT NO. 20

Attorney for DefendantPrepared by:Atticus Finch222 2nd StreetYourtown, MI 56976

STATE OF MICHIGANIN THE CIRCUIT COURT FOR THE COUNTY OF _________

________________________________________________________________

JANE DOE, File No. 14-00000-DM

Plaintiff, Hon.

v.

JOHN DOE

Defendant.

Attorney for Plaintiff Attorney for Defendant

ORDER FOR STAY

At a session of said Court, held in the City of ______,County of ______, State of Michigan on this the day of _ , 2015.

Present: _____________________________Circuit Court Judge

THIS MATTER having come on to be heard upon the notice pursuant to Michigan’s Uniform Collaborative Law Act section 6 (MCL 691.133)

IT IS HEREBY ORDERED that the above entitled action shall be stayed from proceeding; however, the parties and Collaborative attorneys shall provide a status report on the Collaborative law process and the proceeding. The status report may only include information as to whether the process is ongoing or concluded. It may not include a report, assessment, evaluation, recommendation, finding, or other communication regarding the Collaborative law process or the Collaborative law matter.

IT IS FURTHER ORDERED that the court shall provide parties notice and opportunity to be heard before dismissing a proceeding in which this notice of Collaborative process has been filed based on delay or failure to proceed.

APPROVED FOR ENTRY:

Honorable ________________________

Circuit Court Judge


COUNTY ADMINISTRATOR

220 NORTH MAIN STREET, P.O. BOX 8645

ANN ARBOR, MICHIGAN 48107-8645

(734) 222-6850FAX (734) 222-6715

TO: Felicia BrabecChair, Ways & Means Committee

THROUGH: Verna J. McDanielCounty Administrator

FROM: Daniel B. DwyerWashtenaw County Trial Court Administrator

DATE: December 4, 2013

SUBJECT: Peacemaking Court

BOARD ACTION REQUESTED:

The Washtenaw County Trial Court requests that the Washtenaw County Board of Commissioners ratify the submission of a grant application for the establishment of a Peacemaking Court to the State Court Administrator’s Office in the amount of $150,000 for the period of October 1, 2013 through September 30, 2014.

BACKGROUND:

The Michigan Legislature created a fund as part of the FY 2014 budget that supports projects aimed at improving public service and court performance. The State Court Administrator’s office selected the Washtenaw County Trial Court’s Peacemaking Court as one of the grant recipients. Chief Justice Robert

EXHIBIT NO. 21

P. Young Jr., in his press release announcing the recipients of the grant money states, “With these grants, we’re unleashing the trial courts’ creativity. This is research and development funding for courts. These ideas, if successful, can be emulated by other courts. One court’s innovative idea may be the genesis for a statewide improvement.”

DISCUSSION:

The Peacemaking Court project will provide benefit to litigants and the wider community by allowing parties the opportunity for increased understanding and tailored solutions that better meet their needs and the needs of their community. Like tribal peacemaking programs and restorative justice programs, the Peacemaking Court will provide a great benefit to youth and the community in juvenile cases by reducing recidivism and giving youth a diversionary option to avoid a record that can preclude future educational and employment opportunities. Domestic relations and other family cases will benefit from more durable and tailored solutions that result from a clearer understanding of the different perspectives or “truths” of all those involved. This, in turn, will enable the healing of important relationships, in contrast to the harm and polarization that too often results for families through the adversarial process.

The Peacemaking Court will allow the parties and those most affected by the conflict to talk about the event, its impact on them, and to look at the whole conflict in a comprehensive context that leads to understanding and meaningful solutions that address the needs of all those involved. When participants are respected and the individuals responsible for causing the problem are part of the decision process and take responsibility for their actions in a meaningful way, the resolutions are more comprehensive and address the needs of everyone involved, as well as the issues that underlie the problem. An important difference between the traditional system and the peacemaking court process is that the resolution is determined WITH the court not BY the court.

IMPACT ON HUMAN RESOURCES:

None

IMPACT ON BUDGET:

The total program budget is $150,000 with no matching funds requirement.

IMPACT ON INDIRECT COSTS:

Indirect costs are not allowable under this grant.

IMPACT ON OTHER COUNTY DEPARTMENTS OR OUTSIDE AGENCIES:

None

CONFORMITY TO COUNTY POLICIES:

The requested Board action conforms with all applicable County policies.

ATTACHMENTS:

• Grant Application

• Resolution

• Budget RESOLUTION RATIFYING THE SUBMISSION OF A GRANT APPLICATION FOR THE

ESTABLISHMENT OF A PEACEMAKING COURT TO THE STATE COURT ADMINISTRATOR’S OFFICE IN THE AMOUNT OF $150,000 FOR THE PERIOD OF OCTOBER 1, 2013 THROUGH SEPTEMBER 30, 2014

WASHTENAW COUNTY BOARD OF COMMISSIONERS

December 4, 2013

WHEREAS, the Michigan Legislature created a fund as part of the FY 2014 budget that supports projects aimed at improving public service and court performance.

WHEREAS, the Washtenaw County Trial Court has submitted a grant application for a Peacemaking court, to the State Court Administrator’s Office in the amount of $150,000 for the period of October 1, 2013 through September 30, 2014.

WHEREAS, the State Court Administrator’s office selected the Washtenaw County Trial Court’s Peacemaking Court as one of the grant recipients.

WHEREAS, Chief Justice Robert P. Young Jr., in his press release announcing the recipients of the grant money state, “With these grants, we’re unleashing the trial courts’ creativity. This is research and development funding for courts. These ideas, if successful, can be emulated by other courts. One court’s innovative idea may be the genesis for a statewide improvement.

WHEREAS, the Peacemaking court’s focus will be, using Native American principles for resolving disputes and addressing offense against the community.

WHEREAS, the goals of the project will be to determine how and if tribal peacemaking principles are transferable to the state court system.

WHEREAS, additional goals of the project will be to reduce recidivism and improve compliance with court orders.

NOW THEREFORE BE IT RESOLVED that the Washtenaw County Board of Commissioners hereby ratifies the submission of a grant application for the establishment of a Peacemaking Court to the State Court Administrator’s Office in the amount of $150,000 for the period of October 1, 2013 through September 30, 2014.

BE IT FURTHER RESOLVED that the Board of Commissioners takes the following actions contingent upon receipt of the grant award in conformity with the application:

1. Authorizes the County Administrator to sign the Notice of Grant Award;

2. Amends the budget as attached hereto and made a part hereof.


STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF _____________________

FAMILY DIVISION

JOHN DOE,

Plaintiff,

vs.

JANE DOE,

Defendant.

Case No. 05- -DM

Hon.

Attorney for Plaintiff123 Main StreetAnn Arbor, Michigan 48104PhoneFax:E-mail:

Attorney for Defendant321 Main StreetAnn Arbor, MI 48104PhoneFax:E-mail:

CONSENT ORDER APPOINTING PARENTING COORDINATOR

Entered: __________, 2015

This order is entered on the consent of the parties, who have agreed that a Parenting Coordinator (PCP shall be appointed to facilitate and make recommendations regarding the resolution of certain issues regarding the parenting of their children.

By their signatures below, the parties acknowledge:

Each of them has read this order, and understands it.

EXHIBIT NO. 22

Each understands that the PC functions as a neutral in a non- confidential process to educate, mediate, monitor, coordinate and make recommendations to the parties and attorneys regarding issues where the parties are unable to reach agreement. The mediation is evaluative in nature as the parties hereby request that the parenting coordinator make non-binding recommendations on issues where they are unable to reach agreement. The PC may make recommendations to the parties and attorneys at their request, or on the PC’s own initiative when the PC believes a recommendation is called for/will be helpful in resolving an issue. The PC will make recommendations to the judge when so requested by the judge.

The parties, by approving this Order, also hereby acknowledge that they are executing this Order freely and voluntarily and based upon their own desire to have a PC appointed. By appointing a PC, the parties agree to abide by any new agreements they make during the parenting coordination process.

On the consent of the parties, therefore, IT IS ORDERED that the parenting issues set forth below are referred to a PC, subject to the limitations set forth in this order.

1. Authority for Parenting Coordination

This court has the authority to appoint a PC with the power to make non-binding recommendations as to the resolution of disputes. The PC acting in this capacity is serving in part as an evaluative mediator, as defined by MCR 3.216, in that she is authorized by the parties to make recommendations as to any issues which have not been resolved by means of her attempted settlement negotiations with the parties. However, the parenting coordination process differs from mediation in that it is not protected by confidentiality.

2. Appointment of Parenting Coordinator

____________________________, is appointed Parenting Coordinator.

3. Contact Information

Parenting Coordinator: Address:Phone:Email:

Parties: Plaintiff-Father: Address:

Phone: Email:

Defendant-Mother: Address: Phone:Email:

The child(ren) is/are whose date of birth is: , and whose date of birth is . The parents shall inform the PC of any change of address or phone number within 14 days.

4. Authority of Parenting Coordinator

When the parties are unable to agree, the PC shall have authority to make non-binding recommendations on the following:

child support; communication protocols between the parties; transportation and transfers of children between parents; clarification and implementation of the regular parenting schedule, and of vacation and holiday schedules; daily routines; education; extracurricular and school activities and recreation; discipline; physical and mental health care management, including: determining and recommending appropriate

medical and mental health evaluation and treatment (including psychotherapy and termination of same, substance abuse and domestic violence treatment and/or counseling, and parenting classes) for children and parents.

the Parenting Coordinator may recommend how any health care provider is chosen; alterations in the parenting schedule, so long as the basic time sharing arrangement is not changed in a

significant degree; however, where the Parenting Coordinator is concerned that the child is suffering emotional or psychological abuse, she may recommend that the judge consider significantly changing the allocation of parenting time;

participation by significant others, relatives, etc. in parenting time; child care/day care/babysitting issues; right of first option to provide care when other parent unavailable; and

Any other issues which the parties request her to help resolve, or which the parenting coordinator identifies as a source of conflict: (including, but not limited to, religious matters, private schooling, non-parent visitation, pets, etc.).

If the settlement negotiations fail to produce a resolution, the PC has the authority to make written recommendations. Such recommendations are advisory only.

When the PC determines that an immediate resolution of a time-sensitive issue is necessary, and if the parties so desire and indicate by their signatures in the designated section below, the PC’s recommendations may be binding from the time they are issued until a hearing on the motion of a party who objects to said recommendation; except that written recommendations made at the completion of the process are advisory only.

The above paragraph does not apply to general changes to the parenting schedule, as the objecting party has 14 days to file an objection to such a change. This clause is intended to provide the PC the authority to make rapid decisions regarding date, time and location of impending exchanges along with other issues that may crop up unexpectedly and require immediate resolution.

The parties hereby agree to follow the PC’s time-sensitive recommendation as the order of the court until a contrary order is entered by the court:

I agree to accept all time-sensitive recommendations as the order of the court until determined otherwise by the judge:

______________________________ ____________________________Plaintiff Defendant

If agreed to as above, the PC’s recommendation will be followed, and each party shall still have 14 days from the date of issuance of the recommendation to make written objections thereto, in which case s/he is

entitled to have the matter heard by the court.

5. Written Recommendations

a. The PC's written recommendations shall be mailed, emailed or faxed to each party and both attorneys.

b. At her discretion, the PC may issue oral emergency recommendations, if she believes they are warranted. Emergency recommendations shall be communicated to the parties by the means most likely to ensure that each is aware of the decision, with a confirming letter, fax or email to follow as soon as possible. The PC may subsequently issue a written recommendation, as described in the paragraph preceding.

6. Confidentiality

The PC's recommendations are not confidential, and the PC may exchange information with any screener, evaluator, testing professional, mediator, doctor/dentist, therapist, guardian ad litem, teacher, other collateral source, or with the other party. The PC shall not communicate ex parte to the judge except as outlined in Section 8, below.

The PC may communicate with any combination of parties, counsel, and collateral contacts (including but not limited to therapists, testing professionals, teachers, caregivers, relatives, friends and employers) outside of the presence of other parties or counsel. The PC may occasionally consult with other PCs in the community and around the country. Every effort is made to disguise the identities of the parties.

There is no guarantee that the PC will keep confidential communications made by any party, attorney, mental health professional involved with the family, collateral source, or other interested person, to the PC, whether such communications are made orally, in writing, over the phone or in email. Confidentiality is entirely and solely within the discretion of the PC, who will be guided by the best interests of the child(ren). Where revealing information may result in a significant detriment to a party or child, with no significant benefit to be derived from revealing it, the PC may, in her discretion, elect to maintain confidentiality.

Further, the PC’s notes and transcriptions of communications made to her may be kept confidential by her and are not subject to discovery or subpoena if the PC determines it would not be advisable to reveal them to the parties or others.

6. Role and Responsibility of the Parenting Coordinator

Prior to the entry of the Judgment of Divorce, the PC shall assist the parents to resolve their parenting plan. Post-divorce cases shall include a form of dispute resolution to assist the parties to identify and modify any aspects of their parenting plan that require clarification to avoid further conflict.

In addition to the mediation component, the parenting coordination process shall include education on the impact of the divorce and parental behaviors on the children. The parties shall be expected to learn how to shield their child/ren from conflict, increase parental cooperation, improve their communication skills, and resolve their own parenting issues. The PC shall determine if these skills shall be taught in a co-parent group format or during the parties’ joint or individual meetings.

The role of PC shall also include the responsibility of documenting parental compliance with any court order, or parent education program agreements and guidelines. In addition to session documentation and

status memos or email to the parties and/or attorneys, the PC may determine if and when to videotape the joint sessions. The purpose of videotaping is to allow the parties to view their behavior for education purposes and for the PC to assess progress. Any videotapes shall remain in the PC’s possession unless ordered by the judge to be released.

One of the goals of parenting coordination is to forestall high-conflict parties from returning to court unnecessarily. When this is not possible, the PC may provide valuable information to the judge by way of testimony if subpoenaed to do so. The full cost of any testimony shall be paid by the parent who subpoenas the PC for a deposition or for court testimony. All testimony shall be focused on the best interests of the child, not on the parents’ rights. 8. Procedure and Rights of Parenting Coordinator

Both parties shall participate in the dispute resolution process as defined by the PC and shall be present when so requested by the PC. The PC shall determine the format for resolving all of the issues assigned to her. The PC may conduct joint or individual sessions that are informal in nature, by telephone, email or in person, and need not comply with the rules of evidence. Sessions or conversations may be recorded or videotaped by the PC for use as a learning tool to improve the parties’ communication, or to illustrate aspects of the parents’ dynamics to the attorneys or judge.

The parties understand that the PC will attempt to resolve any disputes using mediation techniques. Settlement discussions conducted by the PC are not pure mediation as they occur in the context of parenting coordination. As such, they are not confidential.

The Parenting Coordinator shall have:

the authority to determine the protocol of all interviews and sessions, including, in the case of meetings with the parties, the power to determine who attends such meetings, including individual and joint sessions with the parties, the children, or both;

Reasonable access to the children; Notice of all proceedings, including requests for examinations affecting the children; Access to any physician, psychiatrist, therapist or psychological evaluator of any of the parties or

children, and access to school or medical records; Copies of all evaluations and psychological test results performed on any children or any parent

or custodian or guardian of the children, including but not limited to Friend of the Court Reports, psychological evaluations and CPS reports.

Access to any psychological testing or test results performed on the children or any parent, custodian, or guardian of the children and access as needed to speak with the evaluator personally;

Access to principal/teachers/teacher’s aides and current or former day care provider of the children;

The right to interview the parties, attorneys, children and collateral contacts, in any combination, and to exclude any party or attorney from such an interview;

The right to interview or communicate with any other person the Parenting Coordinator deems relevant (“collateral contacts”) to resolve an issue before her or to provide information/counsel to promote the best interests of the child(ren). The parties’ signatures on this Consent Order constitute a full release and authorization to the Parenting Coordinator to communicate and exchange information with all collateral contacts.

the authority to use consultants as necessary to assist the Parenting Coordinator in the performance of the duties set forth in this Order;

copies of all relevant past pleadings and future pleadings relating to custody and parenting issues within seven (7) calendar days after filing.

9. Communication with the Parenting Coordinator. The attorneys have the right to initiate or receive ex parte communications with the PC. Joint discussions with both attorneys may take place by way of conference call, in-person meeting, copied email, memo, deposition or testimony. Either party may initiate contact with the PC. Emails/texts sent to the PC from one parent may be forwarded in whole or part to the other parent/attorneys. The PC may maintain communications with one party confidential from the other.

The PC may communicate with the parties’ children outside the presence of the parties. The PC may communicate with the therapists who are treating the parties’ children as well. If the PC is of the opinion that the information or notes generated by the PC’s communication with the children or with the children’s therapists contains information that may be detrimental to the children or that may be damaging to the children’s relationship with his or her therapist or with either parent, the PC may withhold that information in her discretion. If either parent wishes to review such information, a review may only be allowed on a noticed Motion, after an in camera review of the information by the judge, in consultation with the PC. If, after such a review, the judge agrees with the PC that the divulging of such information could be detrimental to the children or damaging to the children’s relationship with his or her therapist or either parent, the judge may order that such information need not be divulged. The PC’s findings are not confidential, and the PC may exercise her discretion to convey information to any party, attorney, caseworker, evaluator, mediator, therapist or guardian ad litem. The PC may not casually share records, the file, or information learned in her performance of these responsibilities to those who are not involved with the family matter requiring resolution or recommendation. The PC may from time to time seek consultation with a peer (Parenting Coordinator or mental health professional) regarding challenging aspects of the case. Every effort will be made to disguise identifying features of the parties or case so as to ensure the parties’ anonymity.

If the judge so orders, or in emergency circumstances where an immediate decision or intervention is necessary to ensure the welfare of the child or to protect a party, the PC may communicate ex parte with the judge only after giving notice to the parties and attorneys. If the PC communicates with the judge without having given notice, she must notify the judge of that fact and the reasons for not giving notice.The parties must provide all reasonable records, documentation, and information requested by the PC.No attorney-client relationship or privilege is created between the PC and the parties by this Consent Order. The parties understand that the PC does not provide legal advice, only legal information. Parties will be referred to their attorneys for legal advice where indicated.

10. Reporting required by Michigan Law A. Mandated Reporting. Michigan law requires that all health care practitioners (Physicians, Marriage Counselors, Family and Child Counselors, Psychologists, Teachers, Social Workers and others) report to Child Protective Services any information regarding suspected child abuse. As a Licensed Clinical Social Worker, ____________is mandated to report suspected child abuse in her role as PC.

B. Immunity for Child Abuse Reporting. Health care practitioners who are required to report allegations of child abuse are immune from civil suits or liability for making their required reports. They may not be sued either for the report or for the violation of the confidentiality privilege. Specific statutes provide for the immunity for civil suits and also provide an exception to the confidentiality privilege.

Others, including attorney Parenting Coordinators, are also immune from prosecution, civil suits, or liability for good-faith reporting of suspected child abuse.

11. Stipulation as to Resolution of Disputes with the Parenting Coordinator

The parties, in consenting to entry of this order, stipulate and agree that they will make every effort to resolve disputes they may have with the PC regarding any of her orders, recommendations or actions arising out of her performance of the role of PC in this matter.

Neither party may complain about the PC to any licensing board or file a civil suit without first meeting and conferring with the PC in an effort to resolve the complaint. If no resolution is reached, the parties and the PC shall participate in a session with a mediator before any action is undertaken in court or with a licensing board. The parties will propose at least three mediators and the PC will choose the mediator from among that list. Cost of the mediation shall be borne equally by the parties.

Immediately after entry of this Order, counsel for the parties shall telephone the Parenting Coordinator to provide notice of her appointment. Within seven days of entry, counsel shall mail the Parenting Coordinator a true copy of this order.

If, after entry of this order, pleadings or orders related to custody or parenting issues are filed, counsel shall mail copies to the Parenting Coordinator at the time of filing with the court.

12. Compensation of Parenting Coordinator

Fees and Retainer

13. Allocation of fees

All fees and deposits of the Parenting Coordinator shall be shared equally by the parties unless they agree otherwise; however, the Parenting Coordinator shall have the right to reallocate payment of her fees in her discretion, for example if a party has unnecessarily consumed time or has taken a substantially unjustified position, or if she believes that the need for her services are increased due to one party’s intransigence, non-cooperation or unreasonable conduct.

14. Parenting Coordinator As Witness. The Parenting Coordinator shall not be required to testify at any hearing, deposition or trial between the parties, except under court order.

15. Term of Appointment The Parenting Coordinator's term begins when the order has been signed by the judge and the retainer has been paid by each party.

The term of this appointment shall be for a period of ___ months after this order is signed. This term may be extended for successive 12-month terms with the consent of the parties and the Parenting Coordinator. No court order shall be required. Written notice of parties’ intent not to extend the term shall be given prior to the beginning of the next term, otherwise services continued to be performed by the Parenting Coordinator beyond the term shall be subject to payment until written notice of intent not to extend the term is received. Requests by either party for intervention by the Parenting Coordinator shall constitute implicit consent for the continuation of the term.

The Parenting Coordinator may consider any matters submitted to her prior to the expiration of her term. The Parenting Coordinator may, if appropriate in her opinion, issue a written recommendation with regard to any matters under consideration at the time of expiration of the term.

16. Resignation

The Parenting Coordinator may resign for any reason at any time upon 30 days’ notice to both parties. The Parenting Coordinator need not provide advance notice of resignation for non-payment of fees, non-cooperation, harassment by either party, or unreasonable, harassing or disrespectful behavior of either attorney toward the Parenting Coordinator, such determination to be made solely by the Parenting Coordinator. The Parenting Coordinator may issue a recommendation with regard to any matters under consideration at the time of resignation or end of the Parenting Coordinator’s term.

The Parenting Coordinator reserves the right to confer and share file contents with any subsequent Parenting Coordinator prior to the commencement of the service of the new Parenting Coordinator, to ensure continuity of care for the parties and child(ren).

17. Copies of this Order

A copy of this Order must be sent to the Parenting Coordinator/Arbitrator by mail no later than seven (7) business days after it is signed and entered by the Court.

18. Right to a Hearing

By their signatures below, the parties acknowledge their understanding that if either or both object to a written recommendation by the Parenting Coordinator, they have the right to a hearing on the disputed matter before the judge assigned to their case.

___________________________________

Circuit Judge

Approved: Date:

________________________________ __________________________________Plaintiff Defendant

Date: ________________ Date: _______________

________________________________ __________________________________Attorney for Plaintiff Attorney for Defendant

Date: ________________ Date: _______________

Approved:

_________________________________ Date: __________________Parenting Coordinator


How to Maximize the Potential for a Successful Mediation

By: Richard L. Hurford*1

I have been ruined but twice; once when I lost a lawsuit; and once when I won one.

Voltaire

Every litigator is familiar with the “litigation highway;” the journey selected by litigants, who become so committed or entrenched in intractable positions, they suffer the pain, cost, delay and unpredictability of litigation rather than look for strategic and timely “off ramp” to achieve their interests and objectives. Because litigation is not a “profit center” for most businesses and individual litigants, it has become common place to either avoid the litigation highway through an early mediation (often even before the filing of a complaint), or engage in mediation in the search for an effective off ramp once on the hellacious litigation highway. Experience has shown that mediation has and does achieve a client’s true interests in a manner that is often superior than traditional litigation and arbitration and without the pain, cost, delay, unpredictability, and risk.

All experienced litigators and mediators know there are a number of action steps that will maximize the potential of success for their clients at the time of mediation. Permit me to share ten tips for consideration:

Tip No. 1: Select the Right Mediator, the Right Process

The right mediator and the right process are critical. One of the greatest benefits of mediation, like other forms of alternative dispute resolution processes, is the mediation event can and should be flexible and specifically tailored by selecting the “right” mediator with the “right” process best suited to resolve your unique dispute. The mediator’s personal style, as well as the mediator’s knowledge,

1* Richard L. Hurford is the President of Richard Hurford Dispute Resolution Services, P.C., co-author of A Taxonomy of ADR, the current chair of the Macomb County ADR Committee, the vice chair of the Oakland County ADR Committee, and the President of ACR. Richard Hurford has more than 30 years of experience as a litigator, representing clients in mediation, and as a mediator and arbitrator. In addition to mediation, Mr. Hurford has served as a neutral in med-arb hybrids, expert hearing events, mini-trials and a number of other alternative dispute resolution procedures. In addition to a J.D., has an MBA and is certified in Legal Lean Sigma process improvement. Please visit hurfordresolution.com for additional information.

EXHIBIT NO. 23

background and experience, are critical factors to consider. the process that maximizes the potential for success depends upon the particular needs of the parties and the nature of the dispute.

It is also critically important the mediator have the trust (more on “trust” in Tip No. 10) of the attorneys and their clients and, in many cases, once an attorney is content the mediator recommended by opposing counsel is knowledgeable and guided by the right process, that attorney will often defer to the recommendation(s) of opposing counsel. It does not bode well for a successful mediation to battle over a mediator who is not trusted by opposing counsel. Selecting the “right” mediator with the “right” process is more important than selecting “my” mediator.

As discussed in Tip No. 2, a successful mediation demands meticulous preparation; a party should expect no less of the mediator. If a party wants a mediator to pursue a process that is most effective for the dispute at hand, be creative, surface and explore realistic options, raise realistic risks, and exercise wisdom based on experience, the mediator must also be well prepared. Experienced trial counsel always selects a mediator who is as committed and willing to work as hard as they are and willing to engage in effective pre-mediation practices and discussions to prepare for the mediation.

Tip No. 2: Prepare and Then Prepare Some More

Thorough preparation is essential for counsel, the mediator and the parties.

The mediation may be the best and last opportunity for negotiating an off ramp that best maximizes the potential for achieving the client’s critical interests. In preparing for the mediation, counsel will prepare the client by considering many of the following issues:

Know the case. A robust internal case evaluation of potential strengths and weaknesses is critically important. Well before the mediation begins, candidly discuss the strengths and weaknesses of the client’s case (i.e., what is the likelihood of success at trial or arbitration; is the law favorable or does a successful outcome depend on creating new or modified law; does the case involve third parties or witnesses who are important to the success of the case and, if so, will these third parties and individuals cooperate and what will be the impact of continuing the litigation or arbitration on that cooperation; is there problematic information that will almost certainly be disclosed as the result of further discovery; are there individuals likely to be deposed who will make poor witnesses; is the court or arbitrator prone to granting or denying summary judgments; is class certification a high likelihood; are there e-mails, policies, documents or deposition testimony that will be susceptible to misinterpretation or distortion at the time of trial or arbitration; does the case, i.e., the client’s story, have jury appeal in the applicable venue; what have similar cases settled for; etc.).

Determine if the opposing party is ready for the mediation event. Because the desire for an early mediation is becoming more common in achieving a client’s true interests, preparation will often include subtle steps to determine if the opposing party believes it is prepared. If opposing counsel does not have all the facts and documents necessary to permit a reasonable comfort level at the time of mediation, as part of the preparation process mediation savvy trial counsel will seriously consider voluntarily providing opposing counsel, within reason, the information requested for a productive mediation. If opposing counsel will readily be able to obtain the requested information through the

discovery process, there is typically little benefit that will accrue by not voluntarily and selectively providing a certain amount of the requested information. If a client’s interest is served by the successful termination of the dispute at the earliest practicable date or minimizing the costs and delay of litigation or publicity, needlessly withholding readily discoverable and relevant evidence that stands in the way of the client’s objectives may not be particularly strategic. Part of the due diligence a mediator often conducts is to ascertain whether the parties believe they are truly ready to mediate. If, for example, the failure to engage in the voluntary and reasonable exchange of information will be an impediment to a successful mediation, the experienced mediator will endeavor to address that impediment. There are multiple nuanced, creative and mutually satisfactory solutions that can be explored. The experienced mediator, if requested, can be of invaluable assistance in resolving these and other competing interests in a creative and strategic way during the pre-mediation process.

Advise the client what to expect during the life of the mediation and the important milestones that will occur.

Communicate with the mediator. Effective attorney preparation also includes having the appropriate and necessary confidential communications with the mediator well in advance of the day of the mediation. The mediator’s preparation process should involve the opportunity for confidential communications concerning the particular needs of the attorneys and their clients.

There should also be a candid discussion with the client of the strengths and weaknesses of the opposing party’s case.

Know the client’s risk appetite and all interests. While all clients want to “win,” for many clients, particularly business clients, reducing risk, enhancing predictability and other factors can also be very important interests. The full range of the client’s risks and interests should be canvassed and discussed including such issues as: meeting the litigation budget and the desire to avoid continually escalating costs and delays; the tax consequences of the timing and characterization of any resolution or adverse decision; the impact of recently departing or soon departing employees who may be critical witnesses; the consumption of internal resources that might or should be more profitably devoted to other activities; the potential of adverse publicity and its likely impact; the importance of good will that may be impacted by the dispute; setting undesirable precedent; the need for confidentiality and return of information disclosed during discovery; the messages a settlement or adverse outcome will send and to whom; the impact of a resolution or adverse outcome on the practices and interests of the client; etc.

Ascertain the opposing party’s interests. In addition to considering your interests in resolving the litigation, give careful consideration to the potential interests of the opposing party. Every party may have multiple “interests” in resolving a dispute and one of the most creative ways to fashion a mutually acceptable resolution is to identify and address those interests (more on this in Tip No. 8). While most mediations clearly focus on “the money,” creativity is still a key component of successful mediations in addressing the disparate interests of the parties.

Know the client’s BATNA (best alternative to a negotiated agreement), WATNA (worst alternative to a negotiated agreement) and LATNA (likely alternative to a negotiated

agreement. What will occur, and at what cost and risk, if a resolution is not achieved? At what level is the alternative to a negotiated agreement better than accepting terms that are unsatisfactory? Although the parties want to maintain flexibility during the mediation (for example, in the event unknown facts and issues are disclosed at the mediation you may want to re-evaluate your BATNA) come to a preliminary understanding with the client on the walk away points and issues. A bad resolution is not in any client’s best interests and certainly not the objective of any experienced mediator. Do not rely upon the mediator to recognize and counsel against a bad resolution. That is exclusively the province of the well prepared attorney and client.

Select the correct client representatives who will be present at the mediation. If the right individuals aren’t present at the mediation, the mediation may well fail in reaching the objective. Part of the mediator’s due diligence process requires an evaluation of whether all the correct individuals, including those with true settlement authority, will personally appear at the mediation. In certain cases where emotions are raw and still volatile, it may be prudent not to have the principal antagonist present (or present only during the caucus). In other cases the spouse or significant other of a party may provide the support necessary to allow that party to make a difficult decision. Carefully consider these and other related issues in preparing for the mediation. If there are concerns about the party representative(s) selected (or not selected) by opposing counsel, certainly do not hesitate to make those concerns known to the mediator.

Tip No. 3: Prepare a Short, Succinct and Professional Mediation Summary that Is Exchanged

Know your audience. Some parties believe the Mediation Summary is prepared exclusively for the mediator’s benefit to persuade the mediator. Others prepare these summaries for the purpose of satisfying their clients. Simply because the mediator may be convinced of the merits of a case or defense, or the client is satisfied with the tone and tenor of the Summary, does not mean the Mediation Summary will have accomplished an extremely important purpose. One of the main purposes of the exchanged Mediation Summary is to tell a compelling and credible story in a professional manner (more on “professional” in Tip Nos. 9 and 10) that underscores to the opposing party its weaknesses and risks should the matter not resolve at the mediation. A compelling story, based upon the law and the facts of the case, which is told in a concise manner, is a precious opportunity to induce the opposing party to reconsider its settlement position. If there is a need to submit additional information to the mediator, which can be for the mediator’s eyes only, that should certainly be explored during the pre-mediation conference call. However, exchanged summaries, which are read both by opposing counsel and their clients, can have a significant positive impact upon maximizing one’s success during the mediation.

Tip No. 4: A Professional Opening Statement and Carefully Orchestrated Joint Session Can Have a Positive Impact

Some do not see the benefit of a Joint Session or making an Opening Statement. Experienced litigators and mediators know the significant advantages that can potentially accrue from a short, persuasive, and well-constructed Opening Statement. Of course, there are some disputes and mediations where Joint Sessions and Opening Statements may be counter-productive or not particularly helpful and these cases should be discussed thoroughly with the mediator prior to the scheduled mediation. However,

the Opening Statement, just like the Mediation Summary, is an excellent vehicle to persuade the opposing party to reconsider its settlement position.

Moreover, depending upon the nature of the dispute and the personalities of the parties, the Opening Statement and Joint Session can also have a number of other beneficial purposes. Just to list a few: making an appropriate statement of regret or sympathy (where warranted and not to be confused with an apology); developing a rapport or empathy between the party representatives; allowing a party, desperately in need of having his or her “story” told in public, to have the satisfaction of that story being told by counsel in a persuasive and professional manner; suggesting to the opposing party the time is ripe for the parties to move past arbitrary positions and begin mutually exploring true interests; telegraphing to the opposing party the willingness to think creatively, etc. Let us not also forget the fact that numerous psychological studies establish that more information and insights are often obtained by reading the reactions, body language, intonations and expressions of others than is obtained by listening to the spoken word alone. There is no reason to unduly restrict the information gathering process by routinely rejecting the potential benefits of a Joint Session.

Tip No. 5: To Share or Not to Share

As is true of information in virtually every setting is also true in mediation – information is power. Some believe it is best not to share certain information and exploit this power during the mediation in the “hope” to use that information as a devastating surprise during trial. Experienced litigators know that approximately 98% of all civil cases filed in state and federal court never reach trial. They also know that it is more likely than not that competent opposing counsel will eventually discover or become aware of the “surprise” prior to any trial. As such, discerning counsel will weigh very carefully not whether to disclose the surprise but when and how to exercise this negotiation power as part of the mediation strategy. Should the disclosure take place in the Mediation Summary, the Opening Statement, or during the course of a caucus? Unless counsel and the client can articulate a compelling reason not to disclose a surprise, a party is typically best served by the exercise of its power and disclosing the surprise at a strategic time and in a strategic way during the mediation process. Of course there can be exceptions and in case of doubt do not hesitate to discuss the issue candidly with the mediator either before or during the mediation. If the mediator is an experienced trial attorney, there can be no harm in soliciting the mediator’s insight. Anything relayed to the mediator in confidence must be held in confidence until express permission is given to disclose the surprise to the opposing party. One of the critical roles of the mediator during the caucuses is, when requested, to offer fair and appropriate guidance; there is no requirement that anyone accept any requested guidance the client and attorney don’t ultimately agree with. Moreover, there is always the real possibility that what a party believes is a powerful surprise may be no surprise at all. Absent a discussion of the surprise with the mediator, a party may never know if the surprise will be as compelling to the opposing party as believed.

Tip No. 6: Develop a Negotiating Strategy and Plan Ahead

The concept of “anchoring” is as applicable in mediations as it is in any other negotiation setting. The first demand and counter-offer are critically important in that they are capable of communicating either hopelessness or glimmers of hope to the opposing party. An ineffective demand or counter that fails to achieve a client’s objectives, ones that are well below (if you are the defendant) or well above (if you are the plaintiff) what a client’s final position will ultimately be, and a party knows will be totally

unacceptable to the other side, is not necessarily a productive negotiation strategy. The first demand and counter should be based upon a reasoned evaluation of a client’s risks and invites the further discussions necessary to reach the client’s ultimate objectives. Moreover, if the ultimate goal sought will require creativity, consider imbedding a kernel of creativity in the opening position.

If the sole purpose of a party’s negotiating strategy is to simply demonstrate or telegraph a party’s “power” or how “tough” or “disdainful” it is, or is otherwise unrelated to the ultimate objective, one could argue such a strategy has absolutely no strategic or practical value. If a party cannot support the reasons, interests and principles upon which its offers and counter offers are based to the mediator, it will be very difficult for the mediator to explain and explore the rationale with the opposing party. While the mediator may be very good, the mediator is not a miracle worker.

Tip No. 7: When to Disclose the Bottom Line Should be Strategic

Disclose the bottom line strategically when it is calculated to do the most good. Mediation is akin to cooking a succulent dish. The necessary ingredients are added in the correct order and carefully cooked with care and expertise. There is no benefit to deviating from the recipe and bringing the dish to a boil way too early. Add the ingredients of your negotiating strategy in the right order and at the right time, slowly stir the pot with the appropriate care, and let the mediation process fully develop. Experienced negotiators are never in a rush to communicate their bottom line too early to either the mediator or the opposing party. Having taken the care to develop a negotiating strategy, experienced negotiators let that strategy work, as well as the mediation process, in a natural and holistic flow.

Many parties fault mediators for not talking “money” or getting to the “bottom line” as quickly as they would like. Simply stated, if it were that easy then the parties would not have the need for a mediator’s services in the first instance. If the mediation is long, difficult and protracted, the parties and the mediator may deem it most appropriate to declare a short “cooling off” period to further explore, raise and contemplate creative resolution options. The declaration of a bottom line at a premature stage of the mediation may deprive a client of this opportunity. If the mediation appears to be languishing, and patience is running short, inquire of the mediator if the time is ripe for the communication of the bottom line and the impact of such a communication on the client’s overall negotiation strategy. It certainly does no harm to at least seek this input.

Tip No. 8: You Will Learn More by Listening Than by Talking

In the mediation setting listening, observing and learning is far more important than demonstrating one is the smartest person in the room. Unlike the court room, in the mediation context Albert Einstein’s observation is apt: “If you’re the smartest person in the room you are probably in the wrong room.”

Experienced and sophisticated negotiators want to learn as much as possible during the mediation process and silence can be a very powerful tool. Not every statement made by the opposing party during the Opening Session requires a quick response. In that same vein, it is very difficult to ascertain the true interests and objectives of the opposing party if one is talking, focusing attention upon the formulation of the next utterance, sneaking a peek at the I-phone, or otherwise not listening very intently. There is absolutely no substitute for the learning that will take place by listening carefully during the joint session

and the caucuses. Also, it is often more important to listen for what is not said rather than focus exclusively on what is said. If you do not focus and listen carefully for the various interests of the decision maker, you will be squandering a very valuable opportunity.

Tip No. 9: Litigation Advocacy and Mediation Advocacy are Different

Experienced litigators do not confuse trial advocacy with mediation advocacy. They are completely different types of advocacy as they have radically different purposes. In a trial or arbitration, the attorney is attempting to convince the trier of fact of the righteousness of the client’s position(s). In mediation, advocacy is obviously designed to effectuate a resolution that is acceptable to the client. To achieve such a resolution, one wants and needs the cooperation of the opposing party, i.e., a client’s success at the mediation is dependent upon the opposing party accepting the resolution that is sought. To secure the cooperation of the opposing party, it really makes very little sense to engage in hyperbole or an all-out attack on the morals, ethics, or interests of the opposing party. If a party places themselves in the shoes of the opposing party for just a moment, would that party want to cooperate with an individual who has just delivered a scathing personal onslaught on the party’s integrity, conduct, motives or values? When planning and crafting the Opening Statement, seasoned litigators focus on the audience whose cooperation is required to achieve the client’s objective. Will the words that are uttered, and the manner in which they are delivered, further entrench the opposing party or will it give the opposing party a reason to reconsider its settlement position and cooperate in reaching the ultimate goal. The former is ineffective mediation advocacy; the latter is effective mediation advocacy.

This is not to suggest that effective mediation advocacy cannot be forceful, persuasive, and compelling. Of course, mediation advocacy should be. No one expects or requests a party to be tentative, obsequious, servile or demure. However, effective mediation advocates tailor the content of the message and how it is delivered given the client’s strategic objectives.

Tip No. 10: Think Team and Harness the Power of Positive Conflict

As stated by a respected philosopher, positive “conflict lies at the core of innovation.” Indeed, positive conflict is a component in literally all successful mediations. As any professional Team Leader knows, a critical ingredient to the success of a highly effective and well-functioning team in solving difficult operational or other business problems is the ability to generate, embrace and harness the power of positive conflict. In many respects the experienced mediator leads a de facto team. This de facto team is committed to focus its energies on crafting, if possible, a creative resolution that is accepted by the other party. Many of the mediator’s rules, processes and activities are intended to establish such a settlement “team” for the short period of time necessary to achieve a mutually satisfactory resolution.

Positive conflict is the antithesis of a battle of wills, a fight over intransigent positions (as opposed to true interests), demonstrations of personal distaste and judgments, raw demonstrations of power, deception and factual legerdemain, etc. Positive conflict focuses on a candid and trusting discussion with the mediator during the caucus of the good faith difference in ideas, interests, and goals of the conflicting parties and the willingness to mutually explore a potential satisfactory resolution that achieves the client’s objectives. Let there be no mistake, positive conflict does not require any party to abandon its true interests or strategic objectives.

There are two thoughts that have been of assistance in laying the foundation for an effective team and harnessing the power of positive conflict.

“Do not find fault, find a remedy.” Henry Ford

“If you wish to make a man your enemy, tell him simply, ‘You are wrong.’ This method works every time.” Henry Link

As difficult as it may be to believe, aggressive and effective lawyers who achieve great results for their clients at mediation look for ways to cultivate an effective short term “settlement team” and exploit positive conflict – they attack problems not people. They give significant thought and detailed attention to the verbal and non-verbal signals they give throughout the mediation that will cultivate positive conflict and the willingness to work as a team.

It is hoped these tips are thought provoking and helpful in achieving a very positive and productive mediation process for your clients. Particularly when dealing with clients who are not familiar with the mediation process, I have provided these tips to my clients and have found them very effective in explaining and preparing my clients for the mediation process and the search for a strategic “off ramp.” Like any checklist or listing of tips they must be tempered and adapted to the particular dictates of the dispute and the client’s objectives.

Any comments and suggestions you might have for improving or enhancing these tips are truly welcome and invited. We all embrace the importance of continuous improvement. Please submit your comments to me at [email protected].

State of Michigan

County of ____________

Plaintiff(s) Case No. _________

Honorable

v.

Defendant(s).

_________________ /

ORDER OF REFERRAL TO MEDIATION

In the interest of facilitating a prompt resolution, and after consultation with the parties and pursuant to MCR 2.410 and the Court’s ADR Plan, it is ORDERED that this matter is hereby referred to mediation, which shall be conducted in accordance with the rules and procedures set forth below.

[Based upon the agreement of the parties, the Mediator appointed is _______________ and should ________________ be unable to serve as the Mediator for any reason, the parties are encouraged to mutually select a replacement Mediator]. [The parties have five 5 business days to agree upon a mutually satisfactory Mediator and absent agreement the Mediator will be selected pursuant to MCR 2.411 (B) (2) and (3)].

The mediation shall take place on or before _____________ at the time and location designated by the Mediator after consultation with the parties. The Mediator is granted the discretion, after consultation with the parties, to customize the mediation process, reach agreements with the parties on the voluntary exchange of information, and schedule additional sessions as necessary to resolve this dispute. Unless otherwise agreed to by the parties and the mediator, all parties or individuals with settlement authority are required to personally attend the mediation session(s). All parties are directed to attend all scheduled mediation session(s) with their respective counsel of record. Corporate parties must be represented by an agent with full authority to negotiate a binding settlement.

It is ORDERED that unless otherwise required by the Mediator after consultation with the parties, not less than seven (7) calendar days prior to the scheduled mediation session, each party shall provide the

EXHIBIT NO. 24

Mediator with a concise memorandum, no more than ten (10) double-spaced pages in length, setting forth the parties’ position concerning the issues to be resolved through facilitative mediation, including issues of both liability and damages. The Mediator may circulate the parties’ memoranda.

It is further ORDERED that the Mediator shall at all times comply with the Mediator Standards of Conduct promulgated by SCAO and encourage and assist the parties in reaching a settlement of their dispute but may not compel or coerce the parties to enter into a settlement agreement.

It is further ORDERED that the referral of this case to mediation will not delay or modify any time period relating to its disposition, without express order of the Court. Unless otherwise ordered, parties are not precluded from filing pretrial motions or pursuing discovery.

It is further ORDERED that pursuant to MRE. 408 and MCR 2.412, all information disclosed during the mediation session process, including the conduct and demeanor of the parties and their counsel during the proceedings, shall remain confidential, and shall not be disclosed to any other party or to this Court, without the consent of the party about whom the information is disclosed. Unless otherwise required by law, the Mediator shall not be called as a witness nor may the Mediator’s records be subpoenaed or used as evidence.

It is further ORDERED that within ten (10) days of completion of the final mediation session, the Mediator will file a brief report with the Court (SCAO form mc280) stating only who participated in the facilitative mediation session(s) and whether a settlement was reached. Such post-facilitation report or other communications with the court are not to contain any additional information which may breach the principles of mediation confidentiality and privacy.

It is further ORDERED that the parties shall pay to the Mediator in accordance with the terms of the Mediator’s standard Retention Agreement and, unless agreed to the contrary by the parties, the Mediator’s administrative fee and hourly rate shall be divided equally among the parties

It is further ORDERED that the parties will execute such reasonable and standard Confidentiality Agreements as requested by the Mediator.

This referral is not a substitute for trial and the case will proceed to trial in the event settlement is not reached.

It is further ORDERED that the parties shall appear for a status conference before this Court on ____________________________.

_______________________

Circuit Court Judge

Date:

Dispute Resolution Advisor

1 General Authority of the Dispute Resolution Advisors (DRA)

Pursuant to the Contract, the DRA will assist the parties in the early resolution of the Dispute and otherwise assist the parties in the establishment of a dispute resolution mechanism to finally resolve the Dispute.

2 Meet and Confer

The contractually required “meet and confer” events to resolve a pending dispute will be attended by the DRA, who, if requested by the parties, may assist in the mediation of the Dispute during the “meet and confer” event.

3 Dispute Resolution Process

In the event the parties are unable to resolve the Dispute, and as a precondition to the filing of any complaint in court or a demand for arbitration, the DRA will meet with representatives of the parties, including counsel, to establish a dispute resolution process that will lead to the efficient and timely resolution of the Dispute. The dispute resolution process will address such issues as:

(a) Whether the dispute will be resolved by litigation or arbitration and, if arbitration is selected, the DRA will assist the parties in the preparation of a mutually agreeable arbitration agreement;

(b) If the dispute resolution process involves the filing of a complaint in court, the parties will identify the court with jurisdiction over the Dispute and whether the parties will retain or waive the right to any jury trial;

(c) If the dispute resolution involves the filing of a demand for arbitration, there will be a determination of the identity of the arbitrator(s), the location of the arbitration, and whether the arbitration will be administered by a third party;

EXHIBIT NO. 25

(d) The limitations, if any, on permissible discovery including e-discovery, the timing of discovery, the number of depositions, the number of experts, and such other matters as deemed appropriate by the DRA after consultation with the parties;

(e) The appropriate terms of any protective order;

(f) Whether a fee shifting or similar provision is appropriate;

(g) Establish an alternative dispute resolution plan, including the timing of alternative dispute resolution events, as deemed appropriate during the course of the litigation/arbitration; and,

(h) Such other matters as deemed appropriate by the parties and the DRA.

The parties agree that they will cooperate and take such steps as necessary to have all of the above determinations incorporated into any case management plan as established by the court or arbitrator(s) assigned to the Dispute.

4. Authority of the DRA

If the parties are unable to mutually agree to an appropriate, cost effective and proportionate dispute resolution process pursuant to paragraph 3, the DRA will make a determination of the process that is appropriate, cost effective and proportionate. The determination of the Dispute Resolution Advisor will be binding on the parties.

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