Dispute Resolution Section Blog | Dispute Resolution Section

This blog covers topics on a wide range of interest in the field of dispute resolution. Topics include discussions on all aspects of mediation. Published by the State Bar of Wisconsin's Dispute Resolution Section.

This section encourages lawyers, courts, and the public to embrace the variety of dispute resolution methods which offer an alternative to litigation. Members train mediators and arbitrators, and teach lawyers how to serve as advocates in related contexts. They also provide career support to practitioners which includes assistance in the development of dispute resolution techniques and networking with other dispute resolution professionals.

Members of the State Bar of Wisconsin may join the section by visiting https://www.wisbar.org/formembers/groups/pages/join-a-group.aspx (login required).

Section website: https://www.wisbar.org/formembers/groups/sections/DisputeResolutionSection/Pages/Home.aspx

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By: Dispute Resolution Section | State Bar of Wisconsin​

Blog Authors

Nancy A. Mills
Julie A. Short
Cathy A. Warmington
Brent D. Nistler
Michael D. Rust
Hon. David E. Jones
Roy E. Wagner
Jill Hamill Sopha
James J. Mathie
Lisa L. Derr
Mary L. Ferwerda
Judy O'Connell
Perry S. Granof
Marta T. Meyers

Latest from Dispute Resolution Section Blog | Dispute Resolution Section

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 resolution (ADR) world, consisting of both mediations and arbitrations, likewise experienced a surge in acceptance and adoption of virtual meeting platforms.…
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 Techniques. In a complex case, the parties may have tried many impasse-breaking techniques, such as a caucusing, silence, setting objective criteria…
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 lawyer. Attorneys are privileged to know legal terms, phrases, and vocabulary, becoming so fluent that we often forget that these terms…
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 to the PayPal and eBay dispute resolution programs, which have continued to evolve and take shape in our professional community. However,…
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 and may even prove to be illusory. This blog discusses the pros and cons of mediating overtime. Carry On or…
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 Murray-García, it is not so much an event as active engagement in the lifelong process of self-reflection and critique. In that…
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…
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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 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…
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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 March 2020. Derr said she realized that mediating by video conference is not as straightforward as in person sessions. There…
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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 to the disputants who are reminded to exercise this privilege at any time during the mediation. Not all mediators share…
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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,” and set forth five paragraphs, providing that: Charmoli Holdings would pay Ponfils Trust $500,000; Ponfils Trust would quitclaim its interest…
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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 lane after the left lane has slowed to prevent other cars from waiting until the last minute? The combination of different…
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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 and type of alternative dispute resolution (ADR) used can vary, depending upon the nature of the professionals insured, the benefits of…
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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 the parties schedule their initial session, it is not uncommon for one party to be available, for example, only in the…
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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 and Litigation Section chair at von Briesen & Roper, S.C., Milwaukee. His practice includes mediation, arbitration, and litigation. Since my…