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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

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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

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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

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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

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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

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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

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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…
Continue Reading Using Alternative Dispute Resolution for Professional Liability Cases

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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…
Continue Reading An Effective Mediation Tool: Listening

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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

…
Continue Reading When Two Heads Are Better than One: A Case for Co-Mediation

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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…
Continue Reading Mediation Should Be Required in Wisconsin Elder Guardianship Disputes

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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…
Continue Reading Negotiating an Agreement: Don't Forget the Client's Personal Benefit When Valuing a Case

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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…
Continue Reading What Sudoku and Mediation Have in Common