In Higgins v. Hahn – an unpublished per curiam Wisconsin Court of Appeals decision issued May 4, 2022 – a mediator in a divorce action testified in the trial court about some of what occurred during the mediation. Such a scenario implicates Wis. Stat. section 904.085, which governs the admissibility of communications in mediation.
Case Facts
By way of background, the parties reached agreement in mediation. However, after the divorce was finalized, the husband realized the value of the
Continue Reading Communications in Mediation: Not Admissible in Court?

While mediators tend to focus on how we conduct the mediation, we tend to devote little attention as to why a particular mediator was selected by the parties.

What are the factors parties consider when deciding upon the mediator for their case?
Trust You’ve Earned from Prior Contact
All parties want someone they can trust. The top factor that produces that trust is a satisfactory prior experience with a mediator. There is no substitute as that trust has been
Continue Reading Mediators: Why Are You Chosen to Mediate a Case?

In fall 2021, two students from Marquette University Law School’s Dispute Resolution Program, Mishkat “Mishi” Torania (3L) and Sarah Bondar (1L), joined the Dispute Resolution Section Board as student liaisons this academic year.

Mary Ferwerda
, Marquette 2011, is executive director of the
Milwaukee Justice Center, the civil legal aid self-help center in Milwaukee County. She is co-creator of the Parenting Conference Dispute Resolution Program in partnership with Milwaukee County Child Support Services. Mishi is a 25-year-old Pakistani-American Muslim.
Continue Reading A Conversation with the Dispute Resolution Section Student Liaisons

In early March, President Joe Biden signed a new law banning mandatory arbitration for workplace sexual assault and sexual harassment claim. Holly Pomraning discusses the act and its implications for employers.

This article was first published in the Lake Effect Human Resources & Law blog. It is published here with permission from the firm and the author.​

On March 4, 2022, President Biden signed the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act,” a new
Continue Reading Biden Administration Bans Arbitration of Workplace Sexual Harassment Claims

The cultural mediation I refer to in this article is clan mediation. Clan mediation within the Hmong community is the negotiation process that Hmong married individuals undergo along with both the husband and wife’s respective clans when seeking a cultural divorce.

In a previous article in the State Bar Family Law Blog in May 2021, I addressed what clan mediation is, and why it is important to the parties, their respective clans, and the attorney.

This article generally
Continue Reading Incorporating Clan Mediation in a Mediated Divorce within the Hmong Community

Late December has to be the most ethical time of the year. It’s when at least half the attorneys think about EPR credits. This article won’t provide ethics credit, but the results of these studies will get you thinking.In 2009, Art Hinshaw and Jess K. Alberts examined how likely it was that attorneys would agree to withhold new information in a mediation. They sent out survey questions with this factual situation:In a pre-litigation negotiation, you represent a would-be plaintiff
Continue Reading Ethical Awareness When Negotiating

I just read a “Meet Your Contributors” section in the cover story of the October 2021 issue of Wisconsin LawyerTM​ magazine, where Katherine Trudell described her “oddest/funniest legal experience.”

As a young defense attorney, she brought her young son to observe her first sentencing hearing. Seeing the judge in the hallway, she introduced her son without incident. Just before the hearing, she was called into chambers and chastised. “How could you bring your son knowing that you’re
Continue Reading Assumptions in Law and Mediation: A Deeper Look

​As important as reframing, affirming, searching for underlying interests, identifying areas of agreement, and other specific approaches to conflict intervention may be, our most powerful tools are always the attitudes and beliefs that we bring.
– Bernard Mayer, The Conflict Paradox: Seven Dilemmas at the Core of Disputes, Jossey-Bass 2015, p. 85. ​
Early in my career as a mediator, I focused heavily on process – and rightfully so. After working as a lawyer for years, mediating can feel
Continue Reading Your Mediator Presence Influences Mediation Success

As a strong advocate of mediation and other forms of alternative dispute resolution (ADR), I prefer to focus on the positive aspects of what makes ADR the first choice for resolving disputes, particularly in the area of child custody and placement.

Parents of necessity need to learn to work together – as they will be co-parenting for years into the future. Therefore, it is important that they understand that, together and separately and based on information they have about
Continue Reading Finding Alternate Pathways to a Mediation Agreement

The COVID-19 pandemic has brought many changes to our law practices and that includes how we conduct mediations.

Gone for the most part during the pandemic are the parties and their lawyers coming to the mediator’s office, parties going to their separate rooms, and the mediator shuffling back and forth hoping to reach a settlement.

This has been replaced often by the parties appearing by Zoom and being put into “breakout rooms.”

As the pandemic recedes, the question becomes:
Continue Reading Are Zoom Mediations Really Our Future?

As we slowly, haltingly emerge from the depths of the pandemic, we are starting to assess whether and how our lives will be forever changed. One of the most profound changes may well be the increase in opportunities, post-pandemic, for working from home, as employers discovered that home workers maintained and often increased their productivity.

A key to the success of working from home was the acceptance and adoption of virtual meeting platforms, most notably Zoom.

The alternative dispute
Continue Reading Mediation in the Time of COVID-19: When Virtual Became Real

Lawyers often pick a mediator with a significant amount of subject matter expertise. However, the typical mediation format may not be the best use of your selected subject matter mediator in cases that are complicated, have had some discovery, and have difficult-to-prove damages.

If both counsel acknowledge these issues, a better alternative may be “neutral evaluation,” where your neutral third party hears presentations and provides a nonbinding evaluation of the dispute.
When to Commence Neutral Evaluation?
Traditional Mediation Impasse
Continue Reading Neutral Evaluation: A Close Cousin to Mediation

Many of us took the opportunity during the pandemic to study a new language using a language instruction app or digital program. When learning a new language, we begin with basic terms and vocabulary, often creating phrases to define an object when recall of the vocabulary word does not happen (e.g., “the thing that holds a letter” for the word “envelope”).

As law students, we were taught a “new” language when learning how to think and write like a
Continue Reading Use Plain Language in Dispute Resolution

Merger and acquisition agreements contain many “boilerplate” clauses that rarely receive the same attention as the more heavily negotiated deal terms. To the extent they are considered at all, it would be as a post-closing afterthought and only when a deal has taken a turn for the worse. At that point, the parties are almost always surprised to find that their dispute resolution clauses are ambiguous.

This Legal Update will help reconsider the boilerplate language associated with an alternative
Continue Reading M&A Arbitration Clauses: "Watch-Outs" From A Litigator’s Perspective

Mediators, by our profession, are flexible and adaptable. The best mediators adjust the style of mediation to meet the needs of the parties and the particular case.

So when the pandemic caused a shutdown of much of the civil court system throughout the country, mediators were quick to adapt to virtual mediation.

Online Dispute Resolution (ODR) has been talked about at local, state, national, and international levels for more than a decade. Many trace the origins of ODR back
Continue Reading The Virtual Mediation Buy-in

Many veteran lawyers and mediators have that “one war story” about a mediation that lasted longer than anyone ever expected – stories abound about mediations that continued into the wee hours of the next morning.Under Wis. Stat. Sec. 807.05, there is no such thing as a “handshake deal” in a mediation – it is worth less than the paper it is not printed on. Therefore, a days’ progress made but not documented in a binding written agreement is tenuous
Continue Reading Mediating into Overtime: Yes or No?