Dispute Resolution Section Blog | State Bar of Wisconsin

Pre-Mediation Submissions: Some Practical Suggestions

Hon. David E. Jones — 2023-04-27 00:00:00

According to a 2018 survey, over 75 percent of mediators “always” or “usually” require parties to submit mediation statements, usually about a week before the show.¹

But many mediators, myself included, rarely provide much guidance to lawyers on what to include (or not include) in their statements. This article makes amends for my failings in this area.

Here are a few steps to setting the stage for an efficient and effective mediation:

Audience and Tone

Before discussing content, it’s important to keep in mind the different folks who will constitute your audience. For a mediation statement, there are at least three and maybe four audience members: the mediator, the client, yourself, and perhaps the opposing party or counsel. Meeting and balancing the needs of all these audience members takes some skill and warrants spending more time in drafting than I ever devoted when I was in practice.

I include you in the audience because the act of drafting the statement will make you lift your head up from the everyday jousting of litigation and think about what your client might actually achieve if the case does not settle. It should also impel you to think about the legal spend in going forward.

David E. Jones, Creighton 1987, provides mediation and arbitration services through Resolute Systems, L.L.C., Milwaukee. Previously he served as a federal magistrate judge in the Eastern District of Wisconsin, a partner in the Madison office of Perkins Coie, and an assistant U.S. attorney in the Western District of Wisconsin.

I also included the opposing party/counsel because I have found that exchange of mediation statements, or at a minimum damages calculations, is useful in some cases. An exchange of full or redacted statements can ensure that the parties have a clearer-eyed understanding of the other side’s position and attendant risks. This can include legal limitations on certain types of damages or other legal arguments that may lead to a successful dispositive motion.

Polemical or sarcastic language will put off most mediators, and it may inflame your clients to the point that they have no interest in settling. Instead, you want to show that you are level-headed and accurate about what the record does or does not show.

So take a reasonable tone, and try to keep your submission to 5-10 pages single-spaced – for the sake of all audience members.

Not every mediator will agree with me, but I think the items listed below are critical for the mediator and can serve the needs of the other members of the audience.

The Players at the Mediation

Tell me who is going to participate in the mediation and whether they’ll be with you in the room or (as is increasingly common) in another location participating by videoconference. When an insurance adjuster is going to play a key role, then I will want them to participate in person (rare) or virtually (now fairly common and far better than teleconference).

If there are subrogated parties, it helps for me to know who they are, the size of their liens or interests, and whether they have been kept informed about the mediation. This information can serve as a useful, up-front reminder to your clients that there may be other demands on any settlement proceeds.

The Plot

Your recitation of the factual background should be as nonargumentative as possible. Use a timeline or bullet-point dates if chronology matters. This isn’t a brief, so I don’t need citations to the record. Keep it direct, and don’t get bogged down with recitations of discovery disputes or other side-shows. In noncomplex cases, there will need to be a really good reason for you to spend more than three pages on the background.

Key Legal Issues

Here’s where you tell me why you think you win on the law. If you’re the plaintiff, set out the elements of your claims and tell me why you can satisfy them. If you’re a defendant, tell me why some dispositive legal issue or damages limitation will go in your favor.

The mediator isn’t going to decide your case, obviously, but you do want to explain why the risk analysis favors your client. Drafting this section will focus you on the key aspects of the suit and will help your client see the challenges ahead if the case doesn’t settle.

Procedural Status and Remaining Work

Significant procedural dates, such as the trial, summary judgment, expert reports, or key depositions are useful pressure points. They can also help clients to understand the length of the road ahead.

On this last point, the cost of completing the remaining work is a matter that you should discuss with your client before the mediation. It can be uncomfortable during mediation for clients to realize for the first time how much it will cost to get a case all the way through trial. Oh, and don’t forget the appeal.

Prospect of Trial

Be honest about whether the matter is one in which summary judgment is possible. If there are significant issues of intent or flat-out material factual disputes, then say so. Contract interpretation matters can often be resolved as a matter of law, but issues involving performance are often fact-dependent and likely to go to trial.

Damages

Explain what your best day at trial might look like and link damages to specific claims. Discuss if some damages claims are more likely than others, and address whether there are any grounds for fee shifting. A spreadsheet showing the math can be incredibly useful for everyone and will equip a mediator to respond when the other side complains that they can’t understand how damages were calculated.

This will be helpful for all four audience members, as it will require you to think carefully about what you might reasonably get at trial, it will give your client a more realistic understanding of what it at stake, and it can educate the mediator and your opponent (if submissions are exchanged) as to the bounds of a settlement range. Indeed, a key reason why mediations don’t succeed is that a defendant cannot understand how a plaintiff can get to a demanded number. An exchange of damages information can obviate this obstacle.

Claimants are often convinced that they are entitled to significant punitive or exemplary damages. As a practical matter, very few settlements include significant amounts for punitives, and even fewer defendants will even entertain the prospect. It therefore makes sense to discuss this reality with a client before the mediation.

History of Settlement Discussions

The mediator will need to know whether there have been prior discussions, and if not, why. If discussions occurred, tell me whether a mediator was involved and set out the parties’ opening and final positions. No need to get into why the discussions weren’t successful, as this will only energize your client.

Paths to Settlement

This is another area that can spur productive pre-mediation conversation with your client. Get them thinking about what life might look like without litigation. If there are nonmonetary provisions your client needs or wants, it’s helpful to get those identified early.

But do not stake out a bottom line.

The vast majority of settlements involve a number somewhere in between what each party thought they should do when they came into the mediation. A firm number in the mediation statement will become a difficult hurdle for the mediator to overcome. Worse, you may determine that a different number makes sense during the course of mediation, and explaining to your client why you’ve changed your mind just presents a problem that you don’t need to have.

Attachments

Most mediators don’t want you to reinvent the wheel, and they want to see for themselves key documents. They like to get the operative pleadings and will skim through any substantive submissions, like summary judgment briefing.

As for deposition transcripts, I like to get them. They are helpful for substance, as I like to see what a witness actually said rather than reading a characterization of the testimony. In addition, transcripts give me some insight as to lawyer and client dynamics. As an aside, it has been my great pleasure to see that lawyers in Wisconsin almost unfailingly conduct courteous and skillful examinations. There are few speaking objections, and the lawyers work together professionally.

Conclusion: A Necessary Chore

I know that drafting the mediation statement is a chore. But the effort can have salutary effects.

You can establish yourself to the mediator as the level-headed participant. You can create the opportunity for thoughtful examination by your clients about what they really need out of the litigation.

When statements are exchanged, you can make certain that the other side clearly sees the risks in going forward. And you may see some things about your case that you hadn’t thought about before.

Endnotes

¹ See Brian Farkas & Donna Navot, First Impresion: Drafting Effective Mediation Statements, 22 Lewis & Clark Law Review (2018).

For Success in Mediation, Cultivate a Virtue

James J. Mathie — 2023-03-06 00:00:00

So, you’re preparing for mediation – whether you’re the mediator or an attorney representing one of the parties.

You’ve reviewed the significant evidence and the arguments that can be made from that evidence. You’ve considered the parties’ submissions. Perhaps you’ve made notes to remember during the mediation.

Here’s one to always include: Be patient.

Time is likely the most underappreciated contributor to a successful mediation. Without patience, time doesn’t get to work.

James J. Mathie, Marquette 1986, is the owner of Mathie Mediation Services, LLC, where he mediates cases statewide from offices in downtown Milwaukee.

The Role of Patience

There are many reasons that patience can play an outsize role in mediation.

At the outset, recall the setting for mediation. By the time it rolls around, negotiation has probably already failed at least once. The parties are represented by attorneys who are confident in their case assessments and have expressed them to their client, meaning they’re invested – dug in – to their view of the case. They have also expressed their view to opposing counsel, which hasn’t been productive.

Mediation is likely a new experience for at least one of the parties. And because we live in a swipe left swipe right, take it or leave it world, people don’t get a lot of negotiating practice.

Given this, it is far too easy to conclude after the first demand and offer are exchanged, that the case is unlikely to resolve because the parties are too far apart. It simply confirms what they were thinking before mediation began.

Mediation is not a process of figuring out which side is more convincing, it’s a process of finding where both sides are comfortable resolving their differences. Neither side (or the mediator) knows where that point is when the mediation begins.

Attorneys often underestimate the time that it will take the other party to rethink their position. They aren’t necessarily considering that their position will change. What time does is allow the parties and their counsel to think about their case differently. What makes the other side take the position that they have? If we’re going to think about the case differently, how will that look?

Here Are Your Takeaways

Attorneys: Make a point to be intentionally patient. It will make the inevitable slow start bearable for both you and your client and will give you the best chance to settle your case.

Mediators: Decision-making is a process that takes different and unpredictable amounts of time for different people. Preview the process and encourage the parties – and their attorneys – to give the process the time necessary to work.

I often tell parties that the secret to mediation (in addition to a thorough discussion of the case) is simply giving the parties the time they need to decide. Be ready to do that.

See you at mediation.

This article was originally published on the State Bar of Wisconsin’s Dispute Resolution Blog. Visit the State Bar sections or the Dispute Resolution Section web pages to learn more about the benefits of section membership.

Communications in Mediation: Not Admissible in Court?

Paul William Stenzel — 2022-08-12 00:00:00

In Higgins v. Hahn – an unpublished per curiam Wisconsin Court of Appeals decision issued May 4, 2022 – a mediator in a divorce action testified in the trial court about some of what occurred during the mediation. Such a scenario implicates Wis. Stat. section 904.085, which governs the admissibility of communications in mediation.

Case Facts

Paul Stenzel, U.W. 1995, is of counsel with Hansen & Hildebrand, S.C. in Milwaukee, where he practices in family law.

By way of background, the parties reached agreement in mediation. However, after the divorce was finalized, the husband realized the value of the wife’s 401K was higher than the amount used in settlement, and brought a post-judgment motion to reopen.

The appellate decision affirmed the trial court’s ruling denying the husband’s motion for relief from judgment (brought under Wis. Stat. section 806.07) in which he claimed the wife had failed to disclose her true financial condition before the parties settled their divorce. The factual and legal issues involved the wife’s 401K and the alleged disparity between its true value and the value used for settlement (a difference that appeared to be about $169,000).

The mediator was called as a witness to shed light on the account information exchanged (or not exchanged) during the mediation.

The legal issues on appeal are unremarkable. However, the decision contains the following paragraph:

The mediator testified that he did not recall if Hahn provided him with an updated financial disclosure statement at the mediation, and he only had the materials provided to him on October 2, 2019, the day before mediation. The mediator had almost no notes from the mediation, and he did not recall many of the details of the mediation. However, he did recall spending most of the time addressing the parties’ disputes over the disposition of personal property.¹

Mediator testimony and the admissibility of communication in mediation are governed by Wis. Stat. section 904.085(3) which states:

(3) Inadmissibility.
(a)Except as provided under sub. (4), no oral or written communication relating to a dispute in mediation made or presented in mediation by the mediator or a party is admissible in evidence or subject to discovery or compulsory process in any judicial or administrative proceeding.
…
(b)Except as provided under sub. (4), no mediator may be subpoenaed or otherwise compelled to disclose any oral or written communication relating to a dispute in mediation made or presented in mediation by the mediator or a party or to render an opinion about the parties, the dispute whose resolution is attempted by mediation or any other aspect of the mediation.

The wife subpoenaed the mediator.The parties entered a stipulation citing to Wis. Stat. section 904.085(4), and invoked the exception mentioning Wis. Stat. section 767.405(14)(c). The latter statute requires parents to consent to investigation for a custody and placement study where the person investigating also provided mediation.

However, the mediation provided in Higgins was not Family Court Services custody and placement mediation that is required for this narrow exception. The stipulation also says the parties “waive the inadmissibility of communications in mediation.”

The judge accepted the stipulation, the mediator did not object and did testify about the issues of concern in husband’s motion. Neither of the parties raised section 904.085 on appeal, therefore the question of the applicability of the statute was not addressed by the appellate court.

Mediators and the Protective Shield

Section 904.085 affirms and enshrines the important principle of insulating mediation from the court process. The purpose of the statute is found in section (1): “The purpose of this section is to encourage the candor and cooperation of disputing parties, to the end that disputes may be quickly, fairly and voluntarily settled.”

Once a mediator is on the stand, that purpose is breached.

The mediation statute provides a protective shield. Mediations often occur in a “shuttle” format where the mediator alternates talking to each party and their lawyer. Fear that statements and conduct in mediation could be eventually heard by the other party or by the judge almost certainly would dampen the candid communication that takes place and is often needed for settlement.

The Judicial Council Note accompanying the statute confirms this protective nature:

The purpose of the rule is to encourage the parties to explore facilitated settlement of disputes without fear that their claims or defenses will be compromised if mediation fails and the dispute is later litigated.

Mediation and court play different and important roles in the resolution of disputes. The law requires their separation. As a practicing mediator, I believe the value and integrity of mediation depends on it.

Endnote

¹ Higgins v. Hahn, 2020AP2114-FT ¶5.

Mediators: Why Are You Chosen to Mediate a Case?

Brent P. Smith — 2022-07-08 00:00:00

While mediators tend to focus on how we conduct the mediation, we tend to devote little attention as to why a particular mediator was selected by the parties.

What are the factors parties consider when deciding upon the mediator for their case?

Trust You've Earned from Prior Contact

All parties want someone they can trust. The top factor that produces that trust is a satisfactory prior experience with a mediator. There is no substitute as that trust has been earned. A close second is having a positive reputation that meets the parties’ and attorneys’ needs.

Your Responses in the Interview

Even with some knowledge of positive reputation, mediators are increasingly being asked by attorneys and unrepresented parties to participate in what is actually a job interview.

Brent P. Smith, U.W. 1978, is the managing partner at Johns, Flaherty and Collins, in La Crosse, where he practices in civil litigation, municipal law, and alternative dispute resolution.

As mediators, we should not be offended or taken aback when we are asked to describe our credentials. We simply need to be ready when we receive these often unscheduled calls to describe our mediation background, practice, and techniques. If possible, we need to educate and train staff to have knowledge for these calls as well.

Generally, clients want to know that the mediator has the right background for the case, including substantive knowledge and experience in the area. They also want someone whose style and process will work for them. As mediation has become mainstream, clients often want mediators with knowledge of current laws relating to their case whether divorce, construction, employment, business, special education, elder law and end-of-life issues, to name only a few.

Your Knowledge and Experience

Regardless of the arguments about facilitative versus evaluative, some attorneys and clients are looking for someone with substantive experience and expertise (e.g., personal injury and business disputes). They want someone who has tried cases before judges and juries in their geographic area so they can give the parties guidance on potential trial outcomes or weigh in with options (e.g., a “mediator proposal”).

Do you as mediator feel qualified to deal with the legal issues in a case where experience in a specific practice of law is mandatory? If not, consider asking another mediator if you could sit in or even co-mediate with them.

Also, prepare for when a potential client wants references – make sure that you ask for those well in advance (letting them know it is completely optional). Confirm that acceptance in writing.

Your Mediation Style

Even with someone more evaluative, clients still want to be heard by someone who is empathetic and patient.

An interview is also the mediator’s chance to demonstrate that style by asking more questions about the client and their case, rather than spending most of the call describing their expertise. Mediators can avoid dominating the call by being prepared to succinctly summarize their own approach in a couple of minutes. That is, be prepared to answer the question why they should choose you over any other mediator?

Your Mediation Process

Mediators should be prepared to describe their process in two minutes or less. From a bird’s eye view, how does it work? Is there a background process? What documents or checklists are required? Will there be individual calls before the sessions, especially with multiple parties?

How long do sessions take? How many session are there? How do the mediator handle confidentiality? Are some discussions not confidential? If so, what are they and why?

How are fees handled? Some firms require payment prior to the session, others bill afterward. Some are on fixed-fee schedules and others are by the hour.

Are agreements drafted in-session or out of the session? The mediator should be aware of how hard they push versus the client’s right to self-determination – a gray line if there ever was one.

Be Ready

Parties to litigation have many mediators to choose from when contemplating alternative dispute resolution. It is not only the lawyers who choose the mediators, but their clients as well as the unrepresented parties who are involved in the decision to select a mediator.

The lawyer, the client, and an unrepresented party often want this information before making this very critical decision on who should mediate the case.

As mediators, we should be ready to provide this information to better assist parties in making an informed choice.

A Conversation with the Dispute Resolution Section Student Liaisons

Mary L. Ferwerda — 2022-04-28 00:00:00

In fall 2021, two students from Marquette University Law School's Dispute Resolution Program, Mishkat "Mishi" Torania (3L) and Sarah Bondar (1L), joined the Dispute Resolution Section Board as student liaisons this academic year.

Mary Ferwerda, Marquette 2011, is executive director of the Milwaukee Justice Center, the civil legal aid self-help center in Milwaukee County. She is co-creator of the Parenting Conference Dispute Resolution Program in partnership with Milwaukee County Child Support Services.

Mishi is a 25-year-old Pakistani-American Muslim. She is a 3L and is pursuing the ADR Certificate. In her free time, she enjoys playing with her two cats or riding her bright green motorcycle.

Sarah is a 34-year-old nontraditional student, a mom of two teen daughters, and a newlywed (she got married the first week of classes in August 2021). She is a current litigation paralegal at Kasdorf, Lewis & Swietlik, S.C. Previously, she was a law enforcement officer and 911 dispatcher in Waukesha County, trained to assist women and families in domestic violence situations. Sarah also owns her own life coaching business, developing women into confident leaders at every stage of life. She is an avid coffee drinker, bourbon snob, and a horse lady.

What drew you to participate in Marquette's Dispute Resolution Program?

Sarah: The ADR Certificate really intrigues me. I feel that mediation is the new way of settling matters. Mediation and ADR are going to be the top skills for attorneys to possess. I have been someone who looks for the alternative, more amicable way, of doing things, so I believe ADR suits me.

Mishi: I learned of the Dispute Resolution Society school organization and decided to participate in an intramural competition to get out of my comfort zone. Through competitions hosted by the Dispute Resolution Society, I decided to pursue the ADR Certificate.

Tell us more about the Dispute Resolution Program at Marquette Law School.

Mishi: To pursue the ADR Certificate, there are a variety of classes, experiential requirements, and a research paper as requirements. Some of these classes include Alternative Dispute Resolution, Mediation Advocacy, Negotiation Workshop, and Interviewing and Counseling.

Mishi Torania is a 3L at Marquette University Law School and a student liaison to the State Bar of Wisconsin Dispute Resolution Section.

How can section members be involved with the Dispute Resolution Program?

Sarah: I think the biggest way that section members can be involved is to serve as speakers at events or judges at the various competitions. These programs are sometimes in person and sometimes over Zoom, sometimes in the evening, sometimes at noon. There is definite flexibility with involvement.

What have been some interesting lessons you have learned from your experience with the program?

Mishi: I have learned that skills used in ADR generally make you a better lawyer (and oftentimes, person) overall. Also, different people and different communities have different approaches to ADR.

Sarah: That "it depends" is almost always the answer! And, that it is important to have things outside of law school that you are passionate about.

How has studying ADR shaped how you view the legal system and the law?

Sarah: I believe that ADR is the up-and-coming way of resolving a lot of cases. I believe that (especially with the backlog in the courts system), any civil case is going to be pushed to mediation first to try and reach a settlement.

Mishi: It pushes you away from the adversarial system and echoes what many community-focused cultures have utilized. It provides for a valuable, alternative – and at times, interconnected – route that may be more appropriate or desirable in certain conflicts.

What has the pandemic and related closures meant for your experiences in ADR?

Mishi: Pandemic closures have not been too much of a deterrent. They have been an opportunity to explore remote mediations and other experiences. I think remote ADR options will be around for a while and can be incorporated into future practice as a way to increase accessibility.

Sarah: In some ways, the pandemic has given us surprising benefits: it has taught us how to do many things we never thought possible in the beginning. It has opened doors for attorneys to conduct mediation, hearings, and client meetings in ways that we never thought possible. I know it has helped me: I am able to continue to work part time while being in law school full time because of the ability to work remotely.

Sarah Bondar is a 1L at Marquette University Law School and a State Bar Dispute Resolution Section student liaison.

As the future of the profession, what are your hopes?

Sarah: I hope that we are able to continue to evolve and use technology to our advantage, instead of seeing it as a hinderance. I am grateful for the opportunity to be in law school, to be here with you all, and to be where I am in my life. Many people who grew up like I did would have given up a long time ago, but I only continue to persevere.

Mishi: I hope for the field to continue to evolve as new generations and diverse communities contribute to the field. ADR is a fascinating and valuable field, but it is relatively new and has its limitations. I hope to see it develop in a way in which is serves all people who seek to utilize it in resolving their conflicts. Further, I hope to see more opportunities for young people to get involved and to share their own perspectives.

I would like to thank the Dispute Resolution Section of the State Bar in allowing us this opportunity and for including us in the discussion. It is great to learn from those actively involved in the field. I'm excited to see what the future of ADR holds for us all.

Mentors and Volunteers are Always Needed

Thank you, Mishi and Sarah, for sharing your experiences and insights with us. We wish you the best in your studies and beyond.

Section Members: Participating as a judge or engaging with students on a panel is an excellent way to share your passion for dispute resolution and its role in the justice system. Allowing students to learn from your expertise give them an opportunity to mold their own approaches and styles in dispute resolution.

For more information and to become involved with Marquette Law School's Dispute Resolution Program as a judge for competitions or to serve on a speakers' panel, contact me at mary.ferwerda@wicourts.gov.

This article was originally published on the State Bar of Wisconsin's Dispute Resolution Blog. Visit the State Bar sections or the Dispute Resolution Section web pages to learn more about the benefits of section membership.

Biden Administration Bans Arbitration of Workplace Sexual Harassment Claims

Holly C. Pomraning — 2022-03-21 00:00:00

This article was first published in the Lake Effect Human Resources & Law blog. It is published here with permission from the firm and the author.

On March 4, 2022, President Biden signed the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act,” a new law banning mandatory arbitration for workplace sexual assault and sexual harassment claims.

Arbitration is a form of dispute resolution outside of the court system. Many employment contracts broadly require employees to resolve claims against employers in arbitration.

About the Act

This legislation makes language in existing and future employment contracts related to compulsory arbitration of sexual harassment and sexual assault claims unenforceable, at the option of the person bringing the claim.

Holly Pomraning, U.W. 2008, is an attorney with Lake Effect HR & Law, LLC, in Madison. Her practice focuses on human resources, compliance, and employment law counsel, support, and training.

The law does not impact arbitration of other types of employment disputes, and applies to claims and disputes going forward, not past or pending claims.

A person bringing a workplace sexual harassment or assault claim may still choose to resolve the claim through arbitration, or they may elect an alternative forum such as mediation, administrative agency proceedings, and state or federalcourt.

What Employers Should Consider

In light of this new law, employers should consider the following steps:

Review employment agreements. Employers should review employment agreements for language about mandatory arbitration.
Evaluate voluntary mediation services. Nothing in the new legislature prohibits an employee from resolving disputes outside of court voluntarily. If disputes arise in the workplace, mediation is often a good option for all parties.
Typically, mediation is voluntary, confidential, and self- determined, meaning the parties come up with solutions to resolve the dispute. (The State Bar of Wisconsin’s Dispute Resolution Section is a great resource for attorneys who would like more information about dispute resolution.)
Reiterate your commitment to creating a harassment-free environment. Cultivate a workplace where harassment has no place.

Visit WisBar.org to find out more about the State Bar of Wisconsin’s Dispute Resolution Section and to learn about the benefits of section membership.

Incorporating Clan Mediation in a Mediated Divorce within the Hmong Community

Chue Xiong — 2022-01-19 00:00:00

The cultural mediation I refer to in this article is clan mediation. Clan mediation within the Hmong community is the negotiation process that Hmong married individuals undergo along with both the husband and wife’s respective clans when seeking a cultural divorce.

In a previous article in the State Bar Family Law Blog in May 2021, I addressed what clan mediation is, and why it is important to the parties, their respective clans, and the attorney.

This article generally outlines what the mediation process may look like when it involves clan mediation.

I have applied a similar process – steps are explained below – to my practice, and so far, it has been positive. But it is a work in progress, and has only been applied to clan mediation within the Hmong community. Your situation may be different and may require a different approach.

Chue Xiong, Marquette 2019, is an associate attorney with Otto & Steiner Law, S.C. in Eau Claire, where he practices family law.

The steps to using clan mediation in a mediated divorce are:

1) Involve the Clans Early

The first step to obtaining a mediated divorce using clan mediation is to involve the clan. This should be done early, because if the clans disagree to a divorce, there will not be clan mediation.

How I have met this essential step is by having the parties bring their respective clan leader or the head of their family to the first meeting.

During this meeting, I explain how I plan to incorporate clan mediation into my mediation process. If the clan leaders agree that the parties should proceed with their divorce using my mediation process, I next encourage them to schedule clan mediation to negotiate the divorce.

2) Attend Clan Mediation

The second step is to attend clan mediation. It is not uncommon for each clan leader to bring their own advisors, so there may be more people than expected.

Before negotiation starts, the attorney should introduce themselves, explain the legal process to obtaining a divorce, and an attorney’s role in clan mediation. Explaining the attorney’s role is important, because the Hmong people have a difficult time trusting anyone they consider an “outsider,” especially if the outsider is an authority figure. Your disclosure will help calm everyone and hopefully make the process easier.

Let the clan leaders drive the negotiation. Chances are, this is not the clan leader’s first clan mediation, so let them lead the discussion. But be prepared to bring up important issues that may have been missed. For example, legal custody, placement schedule, assets, debts, etc.

3) Draft Legal Documents

The third step is to draft the necessary documents for a legal divorce. Use what the parties have agreed to in clan mediation and draft the divorce documents.

4) Review and Signature

The fourth step is to meet with the parties to review and sign the divorce documents. It would also be beneficial to give parties an overview of the legal divorce process, the divorce waiting period, and explain what to expect at the final hearing.

5) File the Documents

The fifth and final step is to file the documents with the court. Keep in mind that some jurisdictions do not allow a third party to file paperwork. In this situation, the parties themselves will have to file the paperwork.

For Consideration

Clan leaders are usually the older male members of the clan and English may be a barrier. It would be beneficial to have a translator present.
Clan leaders are generally elected by the clan for their wisdom. It would be beneficial to show clan leaders a great deal of respect.
Clan mediations typically occur in one of the parties’ home. Be prepared for home visits.
Clan leaders or their advisors may have day jobs. Be prepared to meet on the weekends.

Conclusion: Saves Costs and Time

Mediation is a cost saving alternative, and if parties already must go through a cultural mediation process to obtain a divorce, such as clan mediation, attorneys can add value by incorporating that process into their mediation practice.

By doing so, the attorney removes the need to renegotiate the issues that were already agreed to in the clan mediation session, saving time and money for the clients. A potential process to use when incorporating clan mediation into an attorney’s mediation practice is to involve the clans, attend clan mediation, draft documents, gather signatures, and file legal paperwork.

This article was originally published on the State Bar of Wisconsin’s Dispute Resolution Blog. Visit the State Bar sections or the Dispute Resolution Section webpage to learn more about the benefits of section membership.

Ethical Awareness When Negotiating

James J. Mathie — 2021-12-22 00:00:00

Late December has to be the most ethical time of the year. It’s when at least half the attorneys think about EPR credits. This article won’t provide ethics credit, but the results of these studies will get you thinking.

In 2009, Art Hinshaw and Jess K. Alberts examined how likely it was that attorneys would agree to withhold new information in a mediation. They sent out survey questions with this factual situation:

In a pre-litigation negotiation, you represent a would-be plaintiff who thinks he has contracted the deadly DONS (Deficiency of the Nervous System) virus from his former girlfriend. The DONS virus is a hypothetical sexually transmitted disease for which there is no cure, and which will result in death sometime in the next five years. Upon receiving a letter from his former girlfriend telling him that she was DONS positive for the duration of their relationship and suggesting that he get tested for the disease.

The client took two DONS home tests, both of which indicated he had the disease. In an angry letter he informed his former girlfriend of his test results and threatened to sue her as a result. In response, she suggested having their respective attorneys meet to work out a financial settlement because her liability is clear. The only apparent issue for the negotiation is the amount of damages to be paid.

The settlement negotiations are about to begin. Your client reveals to you that the results of his two earlier DONS tests turned out to be false positives, and he does not have the disease after all. While this is a relief, he is still angry with his former girlfriend and wants to punish her for her reckless behavior which caused him the agony of believing the DONS virus was going to kill him. Thinking he was going to die from DONS, he quit his job as a teacher, sold most of his possessions, and sought professional counseling. As a result, he asks you to refrain from revealing the fact that he does not have the disease during the negotiation.¹

Hinshaw and Alberts found that while 62% of respondents would refuse this request, 19% would agree to it and 19% weren’t sure either way.

They followed up with an additional question for the refusers and “not-sures”: Would you agree to only reveal the DONS status if directly asked? 64% indicated that they would refuse; 13% said they would agree; and 23% weren’t sure.

The problem is that the only ethically correct answer to either request is to refuse. How were so many attorneys getting this wrong?

Rule 4.1 provides: In the course of representing a client, a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person; or

(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting in a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

Hinshaw and Alberts suspected that there could be some confusion about the definition of “material fact,” a critical but undefined part of Rule 4.1.

According to case law interpreting the rule, a fact is material to a negotiation if it reasonably may be viewed as important to a fair understanding of what is being given up and, in return gained by the [deal].²

James J. Mathie, Marquette 1986, is the owner of Mathie Mediation Services, LLC, where he mediates cases statewide from offices in downtown Milwaukee.

Comment 2 to the rule indicates that "certain types of statements ordinarily are not taken as statements of material fact" including estimates of price or value, a party's intentions as to an acceptable settlement of a claim, and the existence of an undisclosed principal.

There was definitely some confusion about what is a “material fact.” When Hinshaw and Alberts asked whether the client’s DONS status was material (it is), 84% said it was. But when they asked whether the girlfriend’s desire to settle was material (it’s not), 67% said that was material as well.

Hinshaw and Alberts also correctly surmised that attorneys did not understand misrepresentation law – the foundation for Rule 4.1. Over a quarter (26%) of attorneys said that withholding the DONS status was not a misrepresentation and 13% didn’t know.

The most significant reasons that attorneys gave for agreeing to withhold the information were client confidentiality, and the attorney-client privilege. But neither of these reasons trump Rule 4.1. Both Rule 1.6 and the attorney-client privilege doctrine have exceptions for fraud. And inducing a settlement by a misrepresentation, whether by commission or omission is just that.

An earlier study by Stephen Pepe had similar results.³ But Pepe went a step further. He conducted mock mediations with his hypothetical. A staggering 98% of attorneys tried to settle the case without disclosing the fact that their client’s testimony was false. In only three of the 124 role plays did the attorney acknowledge that the deposition testimony was incorrect. Seventy percent of the time, counsel made affirmative or general assertions about the known false deposition testimony.

It’s fair to say that applying Rule 4.1 on the fly in the course of a mediation can be dramatically difficult. The real danger is failing to be aware of how this applies in an actual mediation. What to do?

Jennifer Robbennolt and Jean Sternlight, in “Drawing on Psychology to Negotiate Ethically,”⁴ suggest that becoming well-versed in the psychology of ethics is important. Realize, for example, that factors like whether losses loom large, you are tired or pressured, whether you believe your adversary is ethical, and the fact that you are acting on behalf of someone else may make it easier to slide into possible unethical conduct.

There are ways to make ethics more salient:

Use reminders, even visual ones, to put a greater emphasis on ethical aspects of your decisions.
Anticipate ethical issues before the negotiation that may arise and plan how they will be handled appropriately, including diplomatically addressing ethical blunders by colleagues or principals.
Prepare for your mediations by examining the state of the evidence to determine whether anything has changed or needs supplementation.
Know your case before mediation as well as you would know it before trial. This makes it less likely that you will accidentally misrepresent facts or fall prey to a suggestion from a client to act unethically.
Pause as soon as you feel the slightest doubt how to respond to a question.
Take a break if needed to critically examine your rationalizations and explanations.
Be humble in recognizing the limits of ethical self-assessment, and consult others who may provide valuable insight.

See you at mediation.

This article was originally published on the State Bar of Wisconsin’s Dispute Resolution Blog. Visit the State Bar sections or the Dispute Resolution Section webpages to learn more about the benefits of section membership.

Endnotes

¹ Art Hinshaw and Jess K. Alberts, “Doing the Right Thing: An Empirical Study of Attorney Negotiation Ethics,” Harvard Negotiation Law Review 2011.

² Ausherman v. Bank of America Corp., 2002; Restatement (Second) Torts §538.

³ Steven D. Pepe, Standards of Legal Negotiations: Survey Instrument 4 (1983)(unpublished).

⁴ Jennifer Robbennolt and Jean Sternlight, “Drawing on Psychology to Negotiate Ethically,” The Negotiator’s Desk Reference, DRI Press, 2017.

Assumptions in Law and Mediation: A Deeper Look

Lisa L. Derr — 2021-12-07 00:00:00

I just read a “Meet Your Contributors” section in the cover story of the October 2021 issue of Wisconsin Lawyer^™ magazine, where Katherine Trudell described her “oddest/funniest legal experience.”

As a young defense attorney, she brought her young son to observe her first sentencing hearing. Seeing the judge in the hallway, she introduced her son without incident. Just before the hearing, she was called into chambers and chastised. “How could you bring your son knowing that you’re going to jail today?” She was terrified. It took the judge a few moments to appreciate that Trudell was not the female defendant.

I asked Trudell for her thoughts on that experience. She explained how mortifying it felt not even realizing that she had been perceived as the defendant (even though she had previously appeared before this judge). She discussed early on being mistaken for the court reporter as well as the stenographer, which was uncomfortable.

In retrospect, she felt it was disturbing, especially for those to whom it happens on a regular basis. She mentioned how those new lawyers may have “impostor syndrome,” not feeling that they belong in the first place. Being subject to these inaccurate assumptions only adds to their sense of insecurity.

Assumptions Are Necessary

Yet, assumptions are biologically necessary. We absorb 11 million bits (pieces of information) per second but are only consciously aware of 40-50 bits per second.¹ We cannot process all that information when we are only consciously aware of a small fraction. While necessary for functioning, this ratio also explains why our assumptions based on automatic associations (that young woman with son is a defendant) are often wrong.

A Moment versus Essence

If Trudell could have discussed with the judge the assumption that the attorney was the defendant, they might have said that it was just an honest mistake, that they are normally very thoughtful in how they approach people. They are not sexist.

Lisa Derr , U.W. 1987, is a partner with Derr & Villarreal in Beaver Dam, where she concentrates her practice in family law and workplace mediation.

For many of us, the adjective “sexist” implies we are a “sexist person” – a fixed, immutable category. Like the judge, we would probably say that one incident does not make us a “sexist” person.

In the same way, incorrect assumptions based on racial stereotypes imply a fixed category of being a “racist person.” But it is not that simple.

Professor Ibram X. Kendi discusses the meaning of the word “racist” in his book, “How to be an Antiracist.” He noted after an incorrect assumption based on race, people almost always immediately reply “I’m not racist,” again because of that fixed image of being a fundamentally bad person (e.g., white supremacist, Klan member).

But that adjective describes behavior at any given moment as opposed to the essence of a human being. An incorrect assumption does not make one a “racist person” because every human being has unconscious bias, our instinctive lens through which we see the world.

A Profound Impact

Unfortunately, people can also internalize these negative stereotypes formed from unconscious assumptions. We are familiar with the famous Clark & Clark (1947) doll test studies used in Brown v. Board of Education.² Based upon Mamie Clark’s dissertation research, in 1947, Doctors Mamie Clark and Kenneth Clark videotaped Black and white children who generally chose the white doll when asked to choose the “good one” and the black doll when asked for the “bad one.”

How many professionally dressed Black defense attorneys have been repeatedly addressed as the criminal defendant? Verbalizing these assumptions diminishes a multifaceted human being to a one-dimensional stereotype.

Over time, it also affects health. More than 100 studies have shown the physical effects of racial discrimination on physical health including heart disease and stroke.³

The Clark study, which has been replicated, affects all of us. In a rare 1974 audio interview, Clark (start at 8:19) discusses how the Supreme Court in Brown v. Board of Education referred to the impact of discrimination on the Black children – but it did not discuss the profound conflict for white children.

However, the impact is not equivalent. Vocational research demonstrates the far-reaching impact on minority populations (racial, ethnic, sexual orientation), especially African Americans, who may have limited employment opportunities because students who internalize discrimination perceive less opportunity.⁴

Seeing the Whole Person

Our clients are far more than their gender, ethnicity, or sexual orientation. Yet, we all inadvertently fail to acknowledge the whole person when we make quick assumptions. Years ago, as the mediator making small talk before a session, I asked a person of East Asian ethnicity, “So, where are you from?” He answered, “Pittsburgh.” In that moment, my assumption was that he was not “from here.” It can be received as “You are not one of us.” In that question, I failed to acknowledge the whole person.

During the 2017 State Bar Annual Meeting & Conference, Judge Carl Ashley recorded an interview and deftly explained how we are a combination of all the things that make us who we are, all we have learned and experienced. As Judge Ashley states, given the significant negative impact, it is critical that we give ourselves the opportunity to see what that person is made of – what they are about – before addressing or responding to them based upon our unconscious assumptions.

Attorneys, judges, and mediators want to practice responsibly. In practice that is very difficult, but not impossible. Years ago, speaking with a potential client, our staff asked a man if he had a wife. He was somewhat surprised, “Uhm, uh, no – I’m gay.” We could have asked if he had a spouse or partner, but never knew to do so.

Where to Begin

Awareness, knowledge, and skills are key because these issues cannot be changed merely with anecdotes. But we can do almost anything if we put in the effort.

Here are seven first steps for those who want to begin:

Take the Harvard Implicit Bias test.
Watch the free TED talk by Lee Mun Wah (2013) “The Secret to Changing the World.”
Take the free Microsoft training Unconscious Bias for personal use only.
Read this well-researched book, Sway: Unravelling Unconscious Bias by Pragya Agarwal. Using science and stories, the author explains unconscious bias and its impact on our lives.
Read the article, “Culture-Based Negotiation Styles” by Michelle LeBaron.
Watch the film, The Color of Fear (Parts I, II, and III). Note that each part costs $15 to stream for 24 hours.
Read “How ‘Impermanence’ Can Help Us All Get Along” (2013) from the Boston Globe.

This article was originally published on the State Bar of Wisconsin’s Dispute Resolution Blog. Visit the State Bar sections or the Dispute Resolution Section webpages to learn more about the benefits of section membership.

Endnotes

¹ "Understanding Unconscious Bias," NPR Wisconsin Public Radio, July 15, 2020.

² Brown v. Board of Education, 347 U.S. 483 (1954).

³ See Madeline Drexler, "How Racism Hurts – Literally," Boston Globe, July 15, 2007.

⁴ Danice L.; Brown, D. L.; and Segrist, D. “African America Career Aspirations: Examining the Relative Influence of Internalized Racism,” Journal of Career Development 177-189 (2016).

Your Mediator Presence Influences Mediation Success

Paul Stenzel — 2021-10-26 00:00:00

As important as reframing, affirming, searching for underlying interests, identifying areas of agreement, and other specific approaches to conflict intervention may be, our most powerful tools are always the attitudes and beliefs that we bring.
– Bernard Mayer, The Conflict Paradox: Seven Dilemmas at the Core of Disputes, Jossey-Bass 2015, p. 85.

Early in my career as a mediator, I focused heavily on process – and rightfully so. After working as a lawyer for years, mediating can feel like being on ice skates for the first time. I wasn’t sure what to grab onto. The old security blankets, like the law, the facts, and what a court might do aren’t as useful – or worse, can be limiting or counterproductive for a mediator.

Process ultimately provided the structure I needed as my foundation for mediation.

Paul Stenzel, U.W. 1995, is of counsel with Hansen & Hildebrand, S.C. in Milwaukee, where he practices in family law.

Nevertheless, Bernard Mayer’s statement above struck me like a thunderbolt when I first read it. Probably because it affirmed something that I had not articulated: that there is an intangible interpersonal alchemy that often occurs in mediation, and mediators profoundly and often unintentionally influence the path of their attitudes and beliefs.

The most relevant example is keeping a positive attitude about settlement. I often work with self-represented parties. They often ask, “Can this work for us?” My answer is almost always, “Yes.” And then I add some variation of “I’ve seen parties who were farther apart with tougher issues reach agreements.” This provides reassurance and potentially some contagious optimism for parties who know little about the legal process.

This Preparation Is Vital

Participants in mediation discern a mediator’s attitude and beliefs from many sources beyond the words the mediator says. That’s why preparation is so important for me in both self-represented and lawyer-assisted mediation.

I think about a case and prepare before the actual mediation commences. I review requested submissions and have pre-mediation meetings with each party (or party and lawyer) so I learn their concerns, interests, and worries.

From this, I try to imagine different scenarios – while being careful not to attach to a certain outcome. If I want to convey a belief in success, I need to see the potential of success, and convey in my words and demeanor that I believe we are moving toward resolution.

Outcome Depends on Detachment

While it is important to maintain a positive attitude, it is also important to manage negative thoughts or personal biases that might prevent it. There are many examples of this. The most challenging for me is when I like or dislike one of the parties or think their demands are unreasonable. Another is when I have a personal preference toward an outcome.

Counteracting this lies in maintaining detachment (part of neutrality) from outcome. This is not “my” mediation. It’s the parties’ conflict and it’s going to be their solution.

In the very first mediation training I took, the instructor talked about dealing with a difficult participant. When mediators say to themselves, “You’re ruining my mediation!” – that's a sure sign that detachment has been lost.

While easier said than done, the mediator’s job is to treat a difficult position or personality as a challenge. I usually double down on listening, asking questions, and remaining as open as possible to this person, despite my negative feelings. Opening up and listening with respect gives the parties a voice and promotes mediator understanding, which promotes solutions.

I cannot avoid my own thoughts, opinions, and biases. The challenge is being mindful and skillful in using my presence to encourage a positive problem-solving space for the parties, rather than letting negativity or my personal views influence the process or outcome.

I always try to convey positivity and neutrality, but there are issues, parties, and professionals who can make that challenging. They require me to be consistently conscious of my words, expressions, and attitude.

Manage Your Ego

A final area of attitude and belief is managing my own ego. Mediation requires a careful blend of confidence and humility. Confidence helps mediators perform their role. Projecting confidence, calm, and competence can rub off positively on participants.

At the same time, mediators should have some humility. I don’t know all of the variables at play between parties. I may misstep or become too intent on pushing an agreement. Even the best mediators make wrong turns. In those moments, humility and self-reflection allow doors to stay open.

I invite you to think more about your attitudes and beliefs as a mediator. Where are they helping you and where are they holding you back?

This article was originally published on the State Bar of Wisconsin’s Dispute Resolution Blog. Visit the State Bar sections or the Dispute Resolution Section webpages to learn more about the benefits of section membership.

Dispute Resolution Section Blog | State Bar of Wisconsin

Pre-Mediation Submissions: Some Practical Suggestions

Audience and Tone

The Players at the Mediation

The Plot

Key Legal Issues

Procedural Status and Remaining Work

Prospect of Trial

Damages

History of Settlement Discussions

Paths to Settlement

Attachments

Conclusion: A Necessary Chore

Endnotes

For Success in Mediation, Cultivate a Virtue

The Role of Patience

Here Are Your Takeaways

Communications in Mediation: Not Admissible in Court?

Case Facts

Mediators and the Protective Shield

Endnote

Mediators: Why Are You Chosen to Mediate a Case?

Trust You've Earned from Prior Contact

Your Responses in the Interview

Your Knowledge and Experience

Your Mediation Style

Your Mediation Process

Be Ready

A Conversation with the Dispute Resolution Section Student Liaisons

Mentors and Volunteers are Always Needed

Biden Administration Bans Arbitration of Workplace Sexual Harassment Claims

About the Act

What Employers Should Consider

Incorporating Clan Mediation in a Mediated Divorce within the Hmong Community

1) Involve the Clans Early

2) Attend Clan Mediation

3) Draft Legal Documents

4) Review and Signature

5) File the Documents

For Consideration

Conclusion: Saves Costs and Time

Ethical Awareness When Negotiating

Endnotes

Assumptions in Law and Mediation: A Deeper Look

Assumptions Are Necessary

A Moment versus Essence

A Profound Impact

Seeing the Whole Person

Where to Begin

Endnotes

Your Mediator Presence Influences Mediation Success

This Preparation Is Vital

Outcome Depends on Detachment

Manage Your Ego​

Manage Your Ego