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?

For most of my practice, cultural competence involved facilitating cultural differences between the parties. But we must also consider how mediators ourselves contribute to conflict because of an unwillingness or incapacity to examine our own biases.

Starting with ourselves is the first step to cultural competence.
It’s Not a Goal – It’s Lifelong Process
Cultural competence sounds like an achievable goal (e.g., completing driver’s exam or passing a class in cultural differences). However, according to Melanie Tervalon and Jann
Continue Reading Mediators & Attorneys: 7 Tips on Practicing with Cultural Humility

Unlike the role of the attorney as advocate, the role of a mediator is to stay neutral, gain the trust of the parties, and keep them engaged in the process until an agreement is reached. Experienced attorneys make very effective mediators, especially when mediating a dispute in their primary practice area – but our effectiveness is reduced when we lose our neutrality and take sides. It can happen easily when one side maintains what we see as an unreasonable
Continue Reading Successful Mediation: Stay Neutral, Stay Calm

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
Continue Reading Early Neutral Evaluation – Is It Time to Use It in Family Law?

In my experience of over 20 years as an employment attorney, being a full-time employment attorney-mediator since 2016, and teaching Mediation Advocacy and Negotiation at Marquette University Law School, I’ve put together my top favorite tips to help lawyers prepare their clients for mediation.

Here are my top 10 tips to maximize results for your clients during their mediation session:

1) Decide the Best Time to Mediate. Consider mediation when you have enough information to adequately advise your client
Continue Reading 10 Tips to Maximize a Positive Result with Mediation

Mediation figuratively and literally brings parties together. In session, the mediator actively listens and empathizes while reading the room to assess the feasibility of settlement.So, how do we adjust in this era of social distancing? Two experienced mediators discuss their experiences.
Lisa Derr on Helping Clients with Technology
Lisa Derr of Derr & Villarreal in Beaver Dam is currently chair of the Dispute Resolution Section. A mediator since 1995, she continued her mediations through Zoom after the safe-at-home order in
Continue Reading Two Mediators’ Perspectives in the Era of Social Distancing

A caucus is a confidential meeting in a mediation, most often with the mediator and some of the members of the dispute in mediation without the other party. Caucus allows a safe exchange of information. Mediators can clarify issues and help parties recover the rhythm of a positive mediation. Used improperly, however, a caucus can derail the process.Caucusing is an effective technique when used judiciously. Some mediators believe it is vital, a right extended to and explained as such
Continue Reading The Caucus in Mediation

In September, the court of appeals decided Paul R. Ponfils Trust v Charmoli Holdings, LLC.1 It’s a cautionary tale about mediation agreements.What Happened in Ponfils
The action arose out of a 40-acre property in Ozaukee County that Charmoli Holdings and the Ponfils Trust jointly owned, and on which a quarry was previously operated by an affiliated entity.
At the end of a mediation, the parties drafted a handwritten mediation agreement that stated “this case is settled in full,”
Continue Reading Drafting Mediation Agreements after Ponfils Trust

With construction season going on at full speed again in Wisconsin, you are probably familiar with the zipper merge all too well. You’re traveling at freeway speeds and suddenly the construction ahead signs show up: “Right lane closed ahead.”
Time to negotiate the zipper merge. How do you do it? If the lane is going away in one mile, do you move out of it? Or do you wait until the last possible moment? Maybe you block the right
Continue Reading Mediating the Zipper Merge