Rule 7.213 Calendar Cases

(A) Mediation in Calendar Cases.

(1)    Selection for Mediation.

(a)    At any time during the pendency of an appeal before the Court of Appeals, the chief judge or another designated judge may order an appeal submitted to mediation. When a case is selected for mediation, participation is mandatory; however, the chief judge or another designated judge may remove the case on finding that mediation would be inappropriate.

(b)    To identify cases for mediation, the Court of Appeals will review civil appeals to determine if mediation would be of assistance to the court or the parties. At any time, a party to a pending civil appeal may file a written request that the appeal be submitted to mediation. Such a request may be made without formal motion and shall be confidential.

(c)    A party to a case that has been selected for mediation may file a request to have the case removed from mediation. Such a request may be made without formal motion and shall be confidential. If the request to remove is premised on a desire to avoid the cost of mediation, it is not necessary to demonstrate an inability to pay such costs.

(d)    The submission of an appeal to mediation will not toll any filing deadlines in the appeal unless the court orders otherwise.

(2)    Mediation Procedure.

(a)    Mediation shall be conducted by a mediator selected by stipulation of the parties or designated by the court. A mediator designated by the court shall be an attorney, licensed in Michigan, who has met the qualifications of mediators provided in MCR 2.411(F).

(b)    Mediation shall consider the possibility of settlement, the simplification of the issues, and any other matters that the mediator determines may aid in the handling or disposition of the appeal.

(c)    The order referring the case to mediation shall specify the time within which the mediation is to be completed. Within 7 days after the time stated in the order, the mediator shall file a notice with the clerk stating only the date of completion of mediation, who participated in the mediation, whether settlement was reached, and whether any further mediation is warranted.

(d)    If mediation results in full or partial settlement of the case, the parties shall file, within 21 days after the filing of the notice by the mediator, a stipulation to dismiss (in full or in part) pursuant to MCR 7.218(B).

(e)    The mediator may charge a reasonable fee, which shall be divided between and borne equally by the parties unless otherwise agreed and paid by the parties directly to the mediator. If a party does not agree upon the fee requested by the mediator, upon motion of the party, the chief judge or another designated judge shall set a reasonable fee. In all other respects, mediator fees shall be governed by MCR 2.411(D).

(f)    The statements and comments made during mediation are confidential as provided in MCR 2.412 and may not be disclosed in the notice filed by the mediator under (A)(2)(c) of this rule or by the participants in briefs or in argument.

(g)    Upon failure by a party or attorney to comply with a provision of this rule or the order submitting the case to mediation, the chief judge or another designated judge may assess reasonable expenses, including attorney’s fees, caused by the failure, may assess all or a portion of appellate costs, or may dismiss the appeal.

(3)    Selection of Mediator.

(a)    Except as otherwise provided in this rule, the selection of a mediator shall be governed by MCR 2.411(B).

(b)    Within the time provided in the order referring a case to mediation, the parties may stipulate to the selection of a mediator. Such stipulation shall be filed with the clerk of the court. If the parties do not file a stipulation agreeing to a mediator within the time provided, the court shall appoint a mediator from the roster of approved mediators maintained by the circuit court in which the case originated.

(B) Notice of Calendar Cases. After the briefs of both parties have been filed, or after the expiration of the time for filing the appellee’s brief, the clerk shall notify the parties that the case will be submitted as a “calendar case” at the next available session of the court.

(C) Priority on Calendar. The priority of cases on the session calendar is in accordance with the initial filing dates of the cases, except that precedence shall be given to:

(1) interlocutory criminal appeals;

(2) child custody cases;

(3) interlocutory appeals from the grant of a preliminary injunction

(4) appeals from all cases involving election issues, including, but not limited to, recall elections and petition disputes;

(5) appeals of decisions holding that a provision of the Michigan Constitution, a Michigan statute, a rule or regulation included in the Michigan Administrative Code, or any other action of the legislative or executive branch of state government is invalid; and

(6) actions brought under Const 1963, art 9, §  29-34 (Headlee actions); and

(7) cases that the court orders expedited.

(D) Arrangement of Calendar. Twenty-one days before the first day of the session, the clerk shall mail to all parties in each calendar case notice of the designated panel, location, day, and order in which the cases will be called.

(E) Adjournment. A change may not be made in the session calendar, except by order of the court on its own initiative or in response to timely motions filed by the parties. A calendar case will not be withdrawn after being placed on the session calendar, except on a showing of extreme emergency.