I actually like to read the Wisconsin statutes from time to time. Take, for example, Wis. Stat. section 802.12, describes and governs alternative dispute resolution for civil actions.
My practice is family law, and so the provisions regarding mediation and arbitration have been the most meaningful statutes for my area.
However, another alternative is early neutral evaluation (ENE). Here is the statutory definition:
802.12(1) (c) “Early neutral evaluation” means a dispute resolution process in which a neutral 3rd person evaluates brief written and oral presentations early in the litigation and provides an initial appraisal of the merits of the case with suggestions for conducting discovery and obtaining legal rulings to resolve the case as efficiently as possible. If all the parties agree, the neutral 3rd person may assist in settlement negotiations.
A judge has the authority to order early neutral evaluation, among other settlement options:
802.12 (2) (a) A judge may, with or without a motion having been filed, upon determining that an action or proceeding is an appropriate one in which to invoke a settlement alternative, order the parties to select a settlement alternative as a means to attempt settlement. An order under this paragraph may include a requirement that the parties participate personally in the settlement alternative. Any party aggrieved by an order under this paragraph shall be afforded a hearing to show cause why the order should be vacated or modified. Unless all of the parties consent, an order under this paragraph shall not delay the setting of the trial date, discovery proceedings, trial or other matters addressed in the scheduling order or conference.
Despite the existence of this settlement alternative, I have rarely, if ever, seen it invoked in family law cases.
Why We Should
Why don’t we attempt early neutral evaluation in family law cases in Wisconsin?
com MMeyers BoardmanClark Marta Meyers, U.W. 1993, is a partner at Boardman & Clark LLP in Madison, where she practices in family law and serves as chair of the family law practice group.
As practitioners, we should seriously consider doing more to promote early resolution. We have these tools available to us. We could use them.
Resolving cases early would be healthier for the family. It would likely save parties a lot of fees. It could get parties through the system more quickly and efficiently.
Parties could gain insights about the case through early neutral evaluation that would serve them well as they navigate the case toward completion. Why can’t we do that?
There are some practical, factual reasons why we cannot.
Often, one party is ready, or more than ready, to finalize all issues relating to their divorce. They are ready to move on and have been for months or years. It is the other party who is stalled, emotionally or otherwise. Commonly, the other party has been surprised by the fact of the divorce or caught off guard, or simply does not want it. It is very difficult to come to a meeting of the minds with ENE under these circumstances.
Often, a party needs discovery. The spouse believes and feels strongly that stones should, in fact, be overturned. Or the spouse is not worried about the smoking gun but is concerned that more facts and documents need to be distilled. Parties and/or their attorneys may be convinced that more data is better than less data. Doing due diligence is a key component for any civil case.
Sometimes, the turmoil of the chaos surrounding a divorce can make it difficult for attorneys, let alone parties, to sit down and try to get to the end. Spouses are in transition; children are in transition. Parties are trying new arrangements for their children. Spouses are starting or seeking new jobs. Homes are being sold and purchased.
If it fails, it is an added, sunk cost which cannot be recovered. But clients fail to appreciate that (sunk cost fallacy) is independent of any future costs.
Don’t we owe it to our clients to try to do more to resolve cases efficiently, effectively, and as quickly as possible?
I cannot recall one case in my career when opposing counsel or I suggested to each other that we try early neutral evaluation to simplify, clarify, or even narrow some of the issues.
I am going to commit myself to including early neutral evaluation on my checklist for each and every case. Certainly, it may not work for some cases, but there must be some situations that can be helped by early, effective, and efficient evaluation.
This article was originally published on the State Bar of Wisconsin’s Dispute Resolution Blog. Visit the State Bar sections or the Dispute Resolution Section web pages to learn more about the benefits of section membership.