ADR

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 position. In my practice area of family law, this is a common occurrence. I, too, often have to resist the inclination…
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…
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 and, if possible, before attorneys’ fees are a significant impediment to settlement. 2) Strategically Choose Your Mediator. In order to be…
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 March 2020. Derr said she realized that mediating by video conference is not as straightforward as in person sessions. There…
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 to the disputants who are reminded to exercise this privilege at any time during the mediation. Not all mediators share…
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,” and set forth five paragraphs, providing that: Charmoli Holdings would pay Ponfils Trust $500,000; Ponfils Trust would quitclaim its interest…
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 lane after the left lane has slowed to prevent other cars from waiting until the last minute? The combination of different…
Professional liability insurance policies provide coverage to corporate directors and officers (D&O), attorneys, insurance and real estate brokers, architects, and engineers, as well as to a host of non-medical professionals operating in different fields. All have an elevated level of duty to the customers and clients they represent. com pgranof granofinternational Perry Granof, U.W. 1978, is the managing director of Granof International Group LLC , in Glencoe, Illinois, where he provides insurance consulting and claims resolution services. The likelihood and type of alternative dispute resolution (ADR) used can vary, depending upon the nature of the professionals insured, the benefits of…
March 6, 2019 – As a mediator for custody and placement of children, either in a contested divorce or post judgment placement matter, I have found that listening closely and carefully is one of the most effective tools of the family court mediator in assisting parents in arriving at an agreement that will benefit their children and one in which they, as parents, find ownership. Listening Before the First Session The listening begins before the first mediation session. When the parties schedule their initial session, it is not uncommon for one party to be available, for example, only in the…
Typically, the life of a mediator is more of a monastic experience. However, certain legal disputes may be better handled by two neutral parties working together to help the case reach a resolution. There are many cases that involve multiple parties (i.e., 5-20), a significant factual complexity, and technical knowledge, which would benefit from two mediators with different skill sets working together in a co-mediation. com rwagner vonbriesen Roy E. Wagner, Marquette 1978, is a shareholder and Construction Law and Litigation Section chair at von Briesen & Roper, S.C., Milwaukee. His practice includes mediation, arbitration, and litigation. Since my…
As attorneys encounter more family disputes, mediation should be considered before a contested guardianship. After practicing elder law for 26 years, I’ve noticed a troublesome trend: a sharp increase in contested guardianships. Based upon comments of colleagues and on elists, this increase is ubiquitous. When Elder Guardianships Become Contested It is troubling that these disputes happen, although it is evident that significant preplanning was done. These cases usually arise when a parent becomes mentally incapacitated and children are now involved as caretakers. Often the parent did everything right before incapacity set in, executing thoughtful financial and health-care powers of attorney…
Given that nearly all cases settle short of trial, lawyers should constantly evaluate the best way to resolve a matter. Decision Tree Analysis A decision tree analysis is one of the most common ways to value a case. In the simplest form, you consider the most likely verdict multiplied by the percentage chance of that verdict. This gives you the “expected value” of litigating a particular matter. The expected value of litigating a matter is the average value of taking a course of action many times. Two Examples Let’s imagine that Pat is the plaintiff in an employment matter. The…
I play Sudoku, a Japanese numbers game with nine blocks of nine squares, where you fill in the numbers one through nine with a different number in each row, column, and block. In playing the hardest puzzles, there typically comes a point where there does not seem to be an obvious number to be filled in. I reach impasse with the puzzle. Time being what it is, I set the puzzle down and go on with my day. Almost invariably, when I pick it back up, there is a relatively obvious number to be filled in that I cannot believe…