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Michigan Arbitration and Mediation Case Law Update


By Lee Hornberger


Michigan Supreme Court Decisions

Supreme Court orders oral argument on COA reversing Circuit Court order denying arbitration.

Saidizand v GoJet Airlines, LLC, 355063 (Sep 23, 2021), app lv pdg, oral argument to be scheduled. Plaintiff brought claims against employer and a supervisor under Elliot-Larsen Civil Rights Act (ELCRA), MCL 37.2101 et seq. Defendants requested summary disposition, citing arbitration agreement signed by plaintiff when he completed job application. Agreement stated he and GoJet agreed to resolve all claims arising out of application, employment, or termination exclusively by arbitration. Circuit Court denied defendants’ motion for summary disposition as to plaintiff’s ELCRA claims. Court of Appeals reversed holding Circuit Court erred by determining whether ELCRA claims were subject to arbitration because under terms of agreement plaintiff and GoJet agreed that arbitrator had authority to determine whether plaintiff’s claims subject to arbitration. On June 23, 2023, Supreme Court ordered oral argument on application to address whether ELCRA discrimination claims may be subjected to mandatory arbitration as condition of employment.

Michigan COA Published Decisions

COA reverses Circuit Court order not to arbitrate with Board members.

Steward v Sch Dist of the City of Flint, ___ Mich App ___, 361112 and 361120 (May 11, 2023). Plaintiff hired to be Superintendent of schools. She worked under written employment agreement that had broad arbitration clause. Signatories to contract were Plaintiff and “Board of Education of the School District of the City of Flint.” Plaintiff complained Board members created hostile work environment. Dispute resulted in plaintiff’s removal. After plaintiff filed suit against Board members, they moved for summary disposition based on arbitration provision. Circuit Court granted relief to entity defendants, but not Board members because they were not parties to agreement that contained arbitration provision. COA reversed denial of summary disposition because obligation to arbitrate disputes extended to Board members as well as School District.

Michigan COA Unpublished Decisions

COA reverses MERC concerning definition of “teacher.”

Kalamazoo Public Schools v Kalamazoo Education Association, 363573 (August 10, 2023). Issue was whether MCL 423.215(3)(j) of PERA, MCL 423.201 et seq, prohibits arbitration of parties’ disagreement. MERC agreed with Union that demand for arbitration was not prohibited by PERA. In split decision, COA disagreed and reversed MERC’s order dismissing ULP charge against Employer. Employer argued word “teacher” in MCL 423.215(3)(j) of PERA is defined by MCL 38.71(1) of TTA or MCL 380.1249(8) of Revised School Code (RSC), MCL 380.1 et seq, or both, and MERC erred by disregarding both of these statutory definitions in favor of dictionary definitions of the word “teacher.” COA agreed with Employer that TTA definition of “teacher” is controlling.

Judge Yates dissent stated COA should accept MERC ruling that employee, as a guidance counselor, was not “teacher” for purposes of placement under MCL 423.215(3)(j).

COA affirms Circuit Court order denying arbitration in dentist non-compete case.

Paine v Godzina, 363530 (July 27, 2023). Appellants argued Circuit Court erred because plain language of contractual agreement required arbitration of parties’ dispute regarding non-compete clause. Based on word “and” in arbitration agreement, COA affirmed Circuit Court’s denial of motion to compel arbitration. COA agreed with Circuit Court that language, “[a]ny dispute, controversy or claim between the Associate and the Employer concerning questions of fact arising under this Agreement and concerning issues related to wrongful termination … shall be submitted … to the [AAA],” means arbitration is required for cases that involve both questions of fact arising under Agreement and issues related to wrongful termination.

COA affirms Circuit Court confirmation of labor arbitration award.

AFSCME Council 25 Local 1690 v Wayne County Airport Authority, 360818 (June 29, 2023). Union requested vacatur of award. Award denied wage increase where one provision of CBA provided for wage increase and arbitrator authority provision of CBA specifically said arbitrator could not grant any wage increase. Circuit Court denied vacatur. COA affirmed.

COA affirms Circuit Court dismissal because of arbitration clause.

Zora v AM & LN, 360224 (June 29, 2023) app lv pdg. COA affirmed Circuit Court ruling that Zora’s lawsuit barred by arbitration agreement. Zora argued that Lichon v Morse, 507 Mich 424 (2021), resulted in change in law of arbitration that affected Circuit Court’s ruling. Zora asserted Lichon held that expansive interpretation of an arbitration agreement, which is how Circuit Court construed arbitration clause, only applies in context of CBAs. COA held Lichon does not undermine or conflict ruling. Lichon ruled that while parties are bound to arbitration if  disputed issue is “arguably” within arbitration clause in the context of CBAs, the principle does not apply outside that context, in which case arbitration agreements are to be read like any other contract.

COA affirms Circuit Court entry of JOD based on DRAA arbitration.

Weaver v Weaver, 361752 (June 15, 2023). COA held Circuit Court did not err by entering JOD which reflected award that failed to value and divide marital portion of plaintiff’s 401(k) plan without first holding hearing.

COA affirms Circuit Court confirmation of award.

Leczel v Intrust Bldg, Inc, 362855 (June 15, 2023), app lv pdg. COA affirmed confirmation of award concerning apportionment of liquidated damages.

COA reverses Circuit Court vacatur of award.

Certainty Construction, LLC  v Davis, 361276 (May 25, 2023). Circuit Court vacated award of attorney fees and determination that construction lien was valid. COA held Circuit Court erred by vacating attorney fees award.

COA affirms Circuit Court ordering arbitration.

UAW v 55th Circuit Court, 361366 (May 11, 2023). COA held issue of whether Union timely invoked arbitration under CBA to be decided by arbitrator.

COA affirms Circuit Court confirmation of remanded clarified award.

Soulliere v Berger, 359671 (April 27, 2023), app lv pdg. COA affirmed Circuit Court denying defendants' motion to vacate award and instead confirming arbitrator's award as clarified by arbitrator pursuant to COA's previous remand.


Michigan Supreme Court Decisions

Supreme Court orders oral argument on COA affirming Circuit Court that no settlement agreement.

Citizens Ins Co of Am v Livingston Co Rd Comm’n, ___ Mich App ___, 356294 (Sep 15, 2022), app lv pdg, oral argument to be scheduled. COA held local government can be bound by settlement agreement entered into by its attorney if (1) government later ratifies agreement or (2) attorney had prior special authority to settle claim.

On March 31, 2023, Supreme Court ordered oral argument on application. Briefs will address: (1) whether material question of fact exists regarding whether parties entered into binding settlement agreement; (2) whether material question of fact exists regarding whether defendant’s former attorney had authority to approve settlement agreement; and (3) whether defendant waived attorney-client privilege as to documents related to its former attorney’s authority to settle.

There are no Michigan COA Published Decisions 

Michigan COA Unpublished Decisions

COA affirms Circuit Court concerning settlement agreement.

In re Edmund Talawanda Trust, 360789, 360790 (June 29, 2023). After mediation, parties consented to mediator making proposal for resolution of remaining issues, and that proposal became settlement agreement. Parties emailed mediator inquiring as to who would be responsible for cost of replacing roof. Mediator provided a response. COA did not address whether mediator’s interpretation of settlement agreement was binding because interpretation of agreement is subject to de novo review, and COA agreed with mediator’s interpretation.

Lee Hornberger is former Chair of Alternative Dispute Resolution Section of State Bar of Michigan, Editor Emeritus of The Michigan Dispute Resolution Journal, former member of State Bar’s Representative Assembly, former President of Grand Traverse-Leelanau-Antrim Bar Association, and former Chair of Traverse City Human Rights Commission. He is member of Professional Resolution Experts of Michigan (PREMi), and Diplomate Member of The National Academy of Distinguished Neutrals. He is Fellow of American Bar Foundation. He is also  Fellow of Michigan State Bar Foundation.

He has received Distinguished Service Award from ADR Section in recognition of significant contributions to field of dispute resolution. He has received George N. Bashara, Jr. Award from ADR Section in recognition of exemplary service. He has received Hero of ADR Awards from ADR Section.

He holds his B.A. and J.D. cum laude from University of Michigan and his LL.M. in Labor Law from Wayne State University.