Dispute Resolution News
February 2007
State Bar of
Wisconsin
Alternative Dispute Resolution Section
Section Board Leadership & Focus
By Amy Koltz
The 2006-2007 ADR Section Board is chaired by Barbara Burbach of Burbach & Stansbury, S.C. She is supported by Chairperson-Elect Natalie Fleury, Secretary Dennis Selby and Immediate Past Chairperson Kevin Lyons. Board members include, Kathleen Baird, Howard Bellman, Gary Gerlach, David Hase, William Jennaro, Percy Julian, James Kirschnik, Amy Koltz, Emily Menn, Terry Peppard, Russell Ware, Cathy Warmington, and Alan Brostoff.
The board continues its focus on providing value to section members in the form of a periodic newsletter, networking opportunities, and CLE/trainings. This year the section will co-sponsor a program with the Appellate Practice Section at the State Bar Annual Convention in May. The program, scheduled for May 10, 2007 from 1:00 p.m. to 4:35 p.m., will include panel discussions regarding the practice of Appellate Mediation. In addition, the board is planning a Mediation Advocacy Skills Training as a stand alone CLE program. Updates on both events and other programs supported by the ADR Section will be made available through the ADR Section webpage, this periodic newsletter, and the section email list. The board welcomes your input and feedback on ADR Section programs and activities.
Feel free to contact our board members via the roster available on the ADR Section webpage.
Section Membership Survey Report
By Kathleen Baird
At its July 2006 meeting, the ADR Section Board directed members Kathleen Baird, Natalie Fleury and Howard Bellman to survey all section members. The goal of the survey was to collect information that would be helpful in making the section more responsive to the needs of its members and in attracting new members. The section currently has about 295 members.
Eighty-six members responded to the survey for a 29% response rate. The response rate far exceeded our expectations. Indicative of the dual roles of most members, 75.6% of responding members are mediators, 47.7% are arbitrators, 41.9% are advocates in mediation, and 34.9% are advocates in arbitration.
While 44.7% of responding members believe that the section is helpful or somewhat helpful to their practices, the largest number of members was neutral on the question of helpfulness. The responses to the remaining questions bring into focus the ways in which the ADR Section can become a more valued resource for our members. 59% of members want the ADR Section to sponsor stand alone CLE programs and 92.7% would like articles on current topics and cases posted on the ADR Section Web site. Other individual suggestions focus primarily on providing networking opportunities; greater access to meetings and trainings statewide and increased visibility of the ADR Section and its activities.
We thank those members who took the time to respond to this survey. Your feedback has given the board invaluable guidance and direction in planning the work of the ADR Section.
Section Legislative Activities
By Amy Koltz
Overview
The ADR Section is a lobbying section of the State Bar. The Legislative Committee, comprised of ADR Board Chairperson Barbara Burbach and members Howard Bellman and Amy Koltz, review proposed legislation as it pertains to Alternative Dispute Resolution. Through working with the State Bar's Government Relations Coordinator, Jason Westphal, committee members are notified of proposed legislation and review bills that involve ADR. The section, however, does not take a position on bills that merely reference ADR. The policy has been that a bill must directly impact the practice of ADR in order for the section to comment or take a position.
Recent Events - Wisconsin Supreme Court Hearing on Proposed Wis. Stat. §802.12(5)
On December 11, 2006, the Wisconsin Supreme Court conducted a public hearing on the matter of a petition seeking to amend Wis. Stat. § 807.05 and to create Wis. Stat. § 802.12(5). The petition, submitted by Mr. Donald Bach, relates to the memorializing of settlements reached by way of Alternative Dispute Resolution.
- Public Hearing & Petition (PDF, 349K) Supreme Court Order for a public hearing and Mr. Bach's Amended Petition for Supreme Court Rules
Just prior to the public hearing, on December 8, 2006, Mr. Howard Bellman and Mr. Gary Gerlach presented the ADR Section Board's position to the State Bar Board of Governors (BOG) opposing Mr. Bach's petition. The position was previously submitted to the BOG in written format on November 16, 2006.
- Opposition to Petition (PDF, 115K) ADR Section Board position opposing Mr. Bach's petition
At the conclusion of its December 8 meeting the BOG chose not to take a position on the matter on behalf of the State Bar as a whole. Rather, the BOG directed interested sections to present their positions directly to the Supreme Court on December 11, 2006.
Therefore, Mr. Bellman and Mr. Gerlach attended the public hearing and presented their viewpoints to the Wisconsin Supreme Court on behalf of the ADR Section. In so doing, Mr. Bellman and Mr. Gerlach were successful in ensuring that the amendment to Wis. Stat. § 807.05 and the proposed 802.12(5) would not include minimum standards requiring mediators to reduce mediation parties' agreements to written form signed by the parties. The court's final determinations on the rule and rule amendment are pending. The ADR Section Board extends its gratitude to Mr. Bellman and Mr. Gerlach for their time and efforts in this matter.
Projected Activities
In the coming months, the Legislative Committee and ADR Section Board will revisit the status of the RUAA and UMA and assess next steps for possible enactment in Wisconsin.
Practice Tips - Mediator/Arbitrator Selection Clause
By James L. Kirschnik
Many of the preprinted contract forms used in the construction industry contain mediation/arbitration clauses. Often times the forms specify the American Arbitration Association (AAA) be utilized for the mediation or arbitration. This is especially true in the case of the American Institute of Architecture (AIA) forms.
In this writer's experience many practitioners prefer an arbitrator other than those available through AAA. Since an agreement to arbitrate is simply a matter of contract, the parties obviously can opt out by mutual agreement.
The following contract language could be used to modify the preprinted contract form language as an alternative:
Claims, disputes or other matters in question between the parties to this Agreement arising out of or relating to this Agreement or breach thereof shall be subject to and decided by mediation or arbitration. Such mediation or arbitration shall be conducted in accordance with the Construction Industry Mediation or Arbitration Rules of the American Arbitration Association currently in effect, however, the parties shall mutually agree on the choice of mediator or arbitrator. If they cannot agree, then each party shall designate a neutral and the two designated neutrals shall select a mediator or arbitrator to be used. Alternatively, if the parties or the neutrals cannot agree, either party may petition the Wisconsin court for such an appointment pursuant to chapter 788 Wis. Stats. In the event of arbitration, if both parties agree, the designated neutrals and their chosen arbitrator may conduct the arbitration as a panel of three. Each party shall compensate its chosen neutral, and the parties shall jointly compensate the chosen arbitrator.
This language allows the parties to mutually select an arbitrator with a procedure for reaching an agreement by use of their own selected neutrals in the event of an impasse. Construction disputes often involve issues requiring interpretation of detailed technical specifications and plans, and the parties may prefer an arbitrator[s] having technical expertise beyond that of a typical arbitrator. The proposed selection process, in the event of the inability to agree on an arbitrator, is a method often used in the casualty insurance field including the use of three arbitrators to render a decision.
Networking Opportunities
Wisconsin Association of Mediators 2007 Annual Meeting and Program
The Wisconsin Association of Mediators annual meeting and program will be held April 13, 2007, at the Radisson Hotel Milwaukee - Pewaukee. Registration and continental breakfast will begin at 9:30 a.m. The annual meeting will begin at 10:00 a.m. Following the meeting at noon, lunch will be served. Following lunch, the educational program will run from 1:00 p.m. - 4:00 p.m. The speakers will be Karen Dorn and Cheryl Stinski with their topic being, "Bridging the Gender Communication Gap." You may contact wam@mailbag.com for a registration brochure.
If you would like to publicize a networking event or give your input on events the ADR Section should sponsor, feel free to contact Amy Koltz.
Articles & Recent Decisions
November 2006 ABA Journal "Clause for Alarm"
In recent years arbitration has been steadily losing favor among some in-house counsel legal departments as lawyers gain more experience in how mandatory clauses play out. Enforcing arbitration clauses can be "messy, complicated and expensive." Plus, it can take as long and be as costly as traditional litigation. Therefore, many in-house counsel have come to prefer mediation.
Recent Wisconsin Decisions Addressing Arbitration:
Coady v. Cross Country Bank, Inc., January 25, 2007 Wisconsin Court of Appeals Decision (pre-dispute binding arbitration clause in a credit card agreement viewed as procedurally and substantively unconscionable under Wisconsin law.)
Winkelman v. Kraft Foods Inc., 2005 WI App 25, 279, Wis. 2d 335, 693 N.W.2d 756 (arbitrator has authority under contract to award punitive damages and attorney fees; attorney fees not awarded for defense of action brought to set aside award).
Steichen v. Hensler, 2005 WI App 117, 283 Wis. 2d 755, 701 N.W.2d 1 (State Bar's attorney fee arbitration award upheld; undocumented assertions that attorney testified falsely at arbitration hearing were insufficient to defeat summary judgment upholding award).
