RSS Feed
Tags Index

Law Rules

How we resolve our disputes

Entries in mediation (46)

Monday
Oct232017

Reclaim Civility in Conflict

For the past seven years, the American Bar Association has been celebrating the third week in October as Mediation Week. This year’s theme is “Mediation, Civility and the Power of Understanding.” In conjunction with that theme and this year’s celebration, the Dispute Resolution Section of the State Bar of Wisconsin published a blog listing seven ways to recognize the value of mediation for addressing conflict in our lives. I am honored to serve on the Board of that Section. As editor of our blog, I thank my fellow board members Amy Koltz and Lisa Derr for their fine work in drafting and submitting this blog. 

Please click on the link and read the blog. Then, consider incorporating mediation and other alternative dispute resolution skills into your daily problem-solving toolkit, not just this week or month, but throughout the year. 

Monday
Jun192017

Twice is nice

Last week, I was on a panel of attorneys at a continuing legal education seminar dealing with mediation. The session was part of the State Bar of Wisconsin’s Annual Meeting and Conference and was interactive. Attendees were asked to participate by answering certain questions using Poll Everywhere. Then, those of us on the panel commented on the answers. Some of the attendees’ responses were expected. Some surprised me. One in particular was very surprising. We asked what attorneys were most afraid of in mediation. The most frequent answer by far was finding out information that was harmful to the attorney’s case. I don’t know what those attorneys were thinking, but I would much rather find out what is wrong with my case at mediation, when there is still time to try to fix it or cut your losses, than during trial when it is too late. 

Early in my career, an attorney who I was working for told me that he didn’t like mediation because it forced him to prepare his case twice. I understand that attorneys are pressed for time and that it can be expensive to prepare your case for trial, and then to do it again, maybe getting more evidence or witnesses, or researching additional legal issues. But after I tried several cases, I realized that I always thought there was something I could have done better had I been able to do it again. Later in my career, I had the opportunity to do mock trials in preparation for some big cases. I always learned many new things about the case and how a jury might perceive it, and usually had to retool my presentation and arguments. This always benefited my client and subsequent settlement negotiations or trial strategy. 

Mediation is supposed to be a consensual process where parties in dispute talk about possible resolutions or settlements. If you suddenly learn new information about your case that makes you rethink its settlement value, that is a good thing. It does not mean you have to throw in the towel and accept your opponent’s settlement offer then and there. You can ask for a continuance to check out the new information and see if there is any way to counteract it. Then you can return to mediation, or proceed to trial, better prepared than before. Either way, mediation will have served a valuable purpose, not one to be afraid of. 

Monday
Apr242017

Home Sweet Home (sometimes)

I am a baby-boomer. That means that many of my friends and relatives are at that point in life where they are in the process of, or considering, selling the single family home in which they raised their children and moving to a condominium or other type of property where landscaping and common elements are taken care of collectively, together with other owners. Often, a homeowners’ association performs those tasks and manages the community. Sounds idyllic. But the legal consequences are too often the opposite. People who haven’t shared residential property ownership with anyone other than their spouse and children since college — 40 to 50 years ago — suddenly have to relearn what sharing means. And, of course, there is no such thing as a free lunch, so they have to pay for the privilege of sharing. Monthly condo or homeowners’ association fees have to be factored into their budgets, along with special assessments and reserve accounts. When things don’t get done, or get done poorly or late, finger pointing begins. Sometimes, the fingers are pointed at the association’s management, board members or other owners. So much for the idyllic scenario. 

When disputes arise between condo or collective homeowners and their association or contractors, litigation frequently ensues.  The resulting litigation can be lengthy, acrimonious and costly. Unfortunately, it seems to be rare in Wisconsin for a condo or homeowners’ association to have an alternate dispute resolution provision in their declaration, by-laws or rules. In Florida, a state statute requires pre-filing mediation and arbitration of certain homeowner/association disputes. 

Recently, I represented several clients buying and selling condos or homes that are part of an owners’ association. Both parties always want to be sure there are no pending special assessments or delinquent monthly dues. Some lenders (including FHA loans) also want to know if there are any unresolved disputes between other owners in the association, or between the association and any of the owners or outside contractors. The pendency of disputes can make it difficult to sell or finance the purchase of a condo or home unit. So it is in everyone’s best interest to resolve such disputes expeditiously. Therefore, I would not be surprised to see more homeowners’ associations and developers include mediation or arbitration clauses in their governing documents. Even existing developments can change their rules to include such clauses, with the owners’ consent. The sooner and more frequently that occurs, the more likely that our Golden Years will not be tarnished. 

Friday
Oct072016

Mediation - the Justice of our Times

In an article about statute of limitations reform for child sex abuse victims, the author notes that Cardinal Timothy Dolan of the New York Archdiocese offered mediation and compensation as a means of resolving the claims against Catholic priests. The article states “Mediation is the justice of our times in the vast majority of cases,” and praises the resolution to the extent that it provides a “more efficient and private path for those survivors who would not choose the legal system.” I haven’t seen any statistics verifying that mediation is used in the “vast majority” of cases but, in my opinion, it should be. 

As an attorney, I have had cases that settled literally on the courthouse steps, sometimes with a jury in the box waiting to hear the case. In retrospect, I believe many of those cases could have been settled long before the trial date with the help of a mediator. Unfortunately, some parties prefer not to think about settling until they have fully prepared for trial. A good mediator should be able to help the parties prepare their cases, or at least to think about what it will take to prepare their cases for trial, and then focus on possible resolutions long before trial. 

As a mediator, I have seen parties come to a realization of the true value of their cases and the true costs and risks of fully preparing for trial well before the court’s trial date. Even if the parties are not fully satisfied with the settlement, at least they are relieved to be done with the costs and risks of going to trial. Sometimes, they are happy to have gotten something they could not have gotten in court, like confidentiality. 

The New York Archdiocese offered mediation as a means to awarding compensation to victims of clergy sexual abuse while at the same time keeping each complaint and award confidential and out of court. The mediation was offered before any pleadings were filed in court, without having to go through lengthy and costly motions and discovery. In my experience, such pre-filing mediation is rare. If it works to the satisfaction of both victims and the church, perhaps this will set a precedent for other potential litigants. Then, mediation will truly become the justice for our times. 

Wednesday
Jun222016

Who wants to go first? 

In mediation, the participants often spend much time trying to get each other to be the first to make a settlement offer. It is understandable that neither wants to be the first because they would both like to see how reasonable or unreasonable the other side is going to be. Then they can respond in kind. Fortunately for the mediator, the parties frequently have had settlement discussions before coming to mediation, and those discussions can help frame the initial offers in mediation. However, if that has not happened, it can be difficult convincing one of the parties to make the first move. 

Likewise, it can be difficult to get the parties to agree to enter into mediation at all. Many people, especially attorneys, see an adversary’s request for mediation as a sign of weakness. If they were prepared for trial and convinced they would win, why would they want to talk about settlement? Where I practice law and have litigated the most cases (Milwaukee County), the standard civil pretrial order requires mediation. It allows the parties to select any mediator they want, but if they cannot agree on one, the court names someone by default. In any event, neither party has to request mediation and appear to be unprepared for trial or less than certain of victory.

Unfortunately, this is not the practice in all counties in Wisconsin. Recently, I attended a “view from the bench” seminar in which trial judges gave tips to trial lawyers. One of the judges said he never ordered mediation unless one of the parties requested it. I believe the judge is missing an opportunity to be of service to the attorneys and their clients. The Judge can avoid the parties’ fear of appearing weak and give the attorneys cover by saying “the Judge made me do it.” The opportunity to settle well in advance of trial also avoids the spectre of one of the parties folding on the courthouse steps immediately before trial, thereby giving away the store or leaving money on the table, and wasting scarce court time. 

So, instead of asking the attorneys if they want mediation, a judge’s default pretrial order should require mediation. The Judge should strike the order for mediation only if he finds some reason not to order it. For example, if the case is one of first impression or if a precedent needs to be set regarding a new statute or constitutional provision, it may not be appropriate for mediation. If the attorneys have tried and settled many similar cases against each other, they may be familiar enough with each other and the process so they do not need a mediator to help guide them through it. Otherwise, the Judge would be doing a favor for the parties, their attorneys and the court system by ordering mediation.