Effective as of the beginning of this year, the Michigan Supreme Court significantly amended the provisions of the Michigan Court Rules governing case evaluation.
The likely result of these amendments will be to push more cases away from case evaluation, towards other methods of alternative dispute resolution.
For example, the very first section of amended MCR 2.403 allows parties to stipulate “an ADR process other than case evaluation,” i.e., mediation or facilitation:
(1) A court may submit to case evaluation any civil action in which the relief sought is primarily money damages or division of property unless the parties stipulate to an ADR process as outlined in subsections (A)(2)-(3) of this rule. Parties who participate in a stipulated ADR process approved by the court may not subsequently be ordered to participate in case evaluation without their written consent.
While case evaluation continues to be the default, parties will be incentivized to stipulate to other ADR processes due to the elimination of case evaluation sanctions. Former MCR 2.403(O) read:
If a party has rejected an evaluation and the action proceeds to verdict, that party must pay the opposing party’s actual costs unless the verdict is more favorable to the rejecting party than the case evaluation. However, if the opposing party has also rejected the evaluation, a party is entitled to costs only if the verdict is more favorable to that party than the case evaluation.
This imposed a potentially significant cost to party rejecting a reasonable case evaluation award. However, this provision has been eliminated and, as a result, the lack of real teeth behind case evaluation awards will make litigants weary of spending time and money on the process. Indeed, without case evaluation sanctions, parties would be well served to consider offers of judgment (MCR 2.405) if they are inclined to use the prospect of costs and fees in an effort push litigation towards a settlement.
That said, it will be interesting to see how case evaluation fares as a serious mechanism for resolving litigation going forward. There are also a few open questions. Such as: what happens in cases filed before January 1, 2021? Here, the likely answer there is that the superseded rules do not apply. See Reitmeyer v Schultz Equip & Parts Co, 237 Mich App 332, 337, 602 NW2d 596, 599 (1999) (“Thus, the norm is to apply the newly adopted court rules to pending actions unless there is reason to continue applying the old rules.”) (quotation marks omitted). And, based on multiple off-hand comments that I’ve heard from Judges from the bench, I suspect that these amendments represent a real move away from case evaluation as a significant tool in the arsenal of Courts to clear their dockets.
Stay tuned to this space for more updates and insights on this significant change in litigation practice in this state.
