Mackall, Crounse & Moore, PLC has joined Dewitt Ross & Stevens S.C.

The newly formed DeWitt Mackall Crounse & Moore S.C. will provide clients with enhanced legal services
and efficiencies as well as access to more than 100 attorneys practicing in nearly 30 areas of
law in Wisconsin and Minnesota.

Dismiss this message

×

News & Education

Back to Minnesota Articles

Filter by:

The Nuts and Bolts of Court-Ordered Mediation

Conventional wisdom tells us that mediation works best when it is voluntary.  So why do judges regularly force litigants into mediation? Perhaps it’s because they know reality to be something quite different than what conventional wisdom has to say about it. Namely, that mediation, whether voluntary or coerced, often helps litigants avoid unnecessary and costly litigation.

While the exact process varies from court to court, the basic concept remains the same.  Whether they want to or not, before the mediation session begins litigants must exchange their initial settlement demands.  While receiving the demands from your opponent can occasionally be shocking, it is more often irritating.  After all, given the fact you are in a lawsuit, it’s a safe bet that you believe the demands from the other side are unreasonable.  Chances are, the other side has the same view of your demands.  Still, this exchange is productive because it establishes the boundaries within which resolution can be achieved and begins the give-and-take process of negotiation.   

Parties are also often required to submit a confidential letter only to the mediator, which can be a trained legal professional or judge.  Unlike the demand letter provided to your opponent, the letter to the mediator is designed to encourage a more realistic assessment of what you would require to settle the dispute. This letter is particularly useful because it provides the mediator “inside information” that can and will be used to convince litigants why it is in their interest to settle.  And therein lies the real value of court-ordered mediation – the mediator while assessing basic legal strengths and weaknesses – can use this “inside information” to help the parties reach a reasonable compromise that makes business sense.

The mediation session, which can be set for a half- or full-day, is where the real hard work gets done.  Competent mediators will tell litigants to prepare for a full-day of mediation and then periodically assess whether it makes sense to keep at it based on the state of the negotiations.  Some mediators will even tell the parties to bring snacks because there will be no break for lunch.  While it sounds a bit heavy-handed, when used properly, this tactic is actually a benefit to settlement.  Lunch breaks are nothing if not momentum killers and thus should be avoided.  In my experience, skipping lunch is one of the most useful tactics a mediator can employ.  In fact, I often ask the mediator to adopt this approach, if he or she does not suggest it..

Most mediation sessions begin with all parties and the mediator gathered together.  At this point, the mediator will explain the process, which involves separating the parties into their own rooms, followed by a type of shuttle-diplomacy with the mediator going from one party to the other in an effort to resolve differences.  Occasionally, however, the mediator will ask the parties if they want to make an opening statement at the outset.  Don’t take the bait.  At best, such statements are unnecessary and redundant of the pre-mediation demand letter.  At worst, they are adversarial and off-putting.  This, of course, is counter-productive and does little more than undercut the mediation before it even starts.  Such statements are better reserved for trial, after mediation has failed.

Once separated, the mediator will work to bring the parties to resolution.  The key to success is to keep in mind you will not get everything you want.  But neither will your opponent.  That outcome is ensured by the nature of mediation, which involves compromise.  (If you want it all, you have to convince the jury and take the risks that go along with it.)  With some hard work by the mediator, the litigants and their counsel, a business resolution often can be reached.  If so, the mediation is a success.  But is it a failure if no resolution is reached?  No. Mediation often has a way of crystallizing the real issues.  This in itself is useful and often leads to a settlement later.  Alternatively, you may find that despite the disagreement with your opponent there is a legitimate business consideration driving the lawsuit.  Once armed with this knowledge, the lawsuit may make more sense, even if it does continue to be a distraction from your business.

Mediation is a useful tool for resolving disputes.  But even if it does not, the process is helpful if it clarifies the impediments to resolution.  The key is to find an experienced mediator and trusted counsel to guide you through the process of compromise.  

About the Author

Eric’s practice includes representing clients in various technology and commercial disputes throughout the U.S.  He focuses primarily on intellectual property litigation.   He works with his clients to achieve goal-oriented litigation.  Additionally, Eric has taken ten cases to verdict, in matters ranging from life-saving medical devices to farming technology.

He can be reached by email or phone at 612-305-1426 .

Disclaimer

One of the best features about our website articles and blog entries is that they are timely—you get up-to-date information on the law as it exists at the time. The downside is that the law changes, but our older entries don't. That means we can't guarantee you are getting the most current law when reading through past entries.

Please don't take these articles and blog entries and rely on them as legal advice. Give us a call instead, for specific and pointed advice for your particular situation. Note that contacting us does not create an attorney-client relationship, unless you are accepted as a client of the firm.

Our Locations

Madison

2 East Mifflin Street, Suite 600
Madison, WI 53703
(608) 255-8891
Get Directions

Greater Milwaukee

13845 Bishop’s Drive, Suite 300
Brookfield, WI 53005
(262) 754-2840
Get Directions

Minneapolis

2100 AT&T Tower,
901 Marquette Avenue
Minneapolis, MN 55402
(612) 305-1400
Get Directions


Get to know us

DeWitt LLP is one of the ten largest law firms based in Wisconsin, with an additional presence in Minnesota. It has nearly 140 attorneys practicing in Madison, Metropolitan Milwaukee and Minneapolis in over 30 legal practice areas, and has the experience to service clients of all scopes and sizes.

Our People
Our Law Firm
Leadership
Areas of Expertise
News & Education
Contact Us

Partners

We are an active and proud member of Lexwork International, an association of mid-sized independent law firms in major cities located throughout the Americas, Europe and Asia and an active member of SCG Legal, an association of more than 140 independent law firms serving businesses in all 50 state capitals and major commercial centers around the world.

Awards

Best Lawyers 2013 – 2018
Compass Award 2012
Top 100 Lawyers: National Trial Lawyers Association

  • blf-badge-2016
  • blf-badge-2017
  • Ramac Member Logo
  • blf-badge-2018
  • BLF-Badge-2019

NOTICE

While we would like to hear from you, we cannot represent you until we know that doing so will not create a conflict of interest. Accordingly, please do not send us any information about any matter that may involve you until you receive a written statement from us that we represent you (an “engagement letter”). You will not be a client of the firm until you receive such an engagement letter.

The best way for you to initiate a possible representation is to call DeWitt LLP at 608-255-8891. We will make every effort to put you in touch with a lawyer suited to handle your matter. When you receive an engagement letter from one of our lawyers, you will be our client and we may exchange information freely.

Please click the “OK” button if you understand and accept the foregoing statement and wish to proceed.