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How we resolve our disputes

Entries in effectiveness (1)


Virtual appearance is not reality

My wife, a public relations professional, frequently reminds me that perception or appearance is reality.  With all due respect to my better half, when it comes to court-ordered mediation, the Wisconsin courts disagree.  In Lee v. Geico Indemnity Co., the Wisconsin Court of Appeals has affirmed sanctions against an insurance company whose representative “appeared” at a pre-trial mediation session by telephone rather than in person.  The insurance company’s attorney appeared in person, but both the trial court and the Court of Appeals were miffed by the insurance company’s failure to notify and ask for the approval of either the opposing party or the trial court.   It did not matter to the court that plaintiff did not complain about the virtual appearance during the mediation session.  Plaintiff moved for sanctions in a pretrial motion.  One of the insurance company’s defenses was that it had become standard procedure for insurance company representatives to appear at mediation sessions by telephone.  Without deciding whether this was true or whether it was a good or bad thing, the appellate court said it was within the trial court’s discretion to impose sanctions for violation of the scheduling order’s requirement to be present and participate in the mediation by a person other than an attorney.  The appellate opinion contains no discussion of whether mediation is any more effective when a party is present in person rather than participating by telephone.  The insurance company argued that appearance by telephone was equivalent to being present and participating in person, but the appellate court rejected that argument based upon dictionary definitions of “appear.”  It would be interesting to see if there is any data showing the effectiveness of mediation where one party participates by phone, internet, Skype or other virtual electronic device.  After all, this is the 21st century.  And my wife is not wrong very often.