Binding mediation gaining traction in Wisconsin

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During a mediation, Milwaukee attorney William A. Jennaro is often asked by one of the parties what he thinks about their case.

The former judge is careful with his response and generally reminds everyone involved that he is there to help reach an agreement, not endorse one side over the other.

“I can’t tell them what a judge is going to do,” he said. “But I want them to appreciate that a jury may not believe what they are saying, and that’s where you get into the evaluative process.”

But Jennaro, of Cook & Franke SC, is exploring the concept known as “binding mediation” in which parties would agree to have him decide unresolved issues at the end of a traditional mediation.

The idea is essentially a hybrid of mediation and arbitration and designed to avoid the cost and time involved in litigating a case, by having a mediator resolve any outstanding disputes.

Binding mediation is not meant to usurp the authority of the courts, but rather to give parties another option in resolving a dispute, Jennaro said.

“If the parties agree to the idea that the mediator can make the decision, they have now replaced uncertainty with certainty,” he said.

Milwaukee mediator Joseph D. McDevitt has utilized the concept on several occasions and said the process is a useful tool to encourage parties to settle.

In his experience, McDevitt said the potential of having him determine the outcome of an issue is an incentive for sides to come to terms and he has not yet had to assume the role of decision-maker.

“There is more willingness to compromise,” he said. “It’s kind of like arbitration in baseball where neither side can be totally ridiculous.”

But there are those that question whether the potential shifting of roles during a mediation could prompt parties to be less open during the process.

Attorney Kathleen M. Baird mediates divorces and wondered if parties would be less cooperative if the mediator ultimately has the power to resolve a dispute.

“Does it affect their level of commitment in working hard to reach a mutual agreement and find common ground in a mediation?” Baird said. “It seems this makes it easier to side-step that commitment if you know the mediator can make the decision.”

Marquette University Law School Professor Andrea K. Schneider agreed that parties could be less candid with someone who could ultimately decide their fate.

Traditionally, the role of a mediator is that of a facilitator, not a decision maker.

“There is worry that this somehow taints the mediator’s neutral role in this,” said Schneider, who teaches alternative dispute resolution.

But McDevitt said he doesn’t see any drawbacks in the process because even in traditional mediations, nobody gets everything they want.

Jennaro plans to recommend the option of binding mediation to parties and their lawyers in the future and expects that it could be a trend whose time has come.

“I think it’s a growing concept because so often you get almost to the resolution, but it doesn’t quite happen,” he said. “And I really feel bad for the parties who are caught in the middle of that because their case is required to continue on in the court process.”

Whether it can be utilized in every mediation is unknown, said Jennaro, especially in emotionally charged divorce cases which may involve child custody issues.

But he said there are certain circumstances, such as construction disputes, which are tailor made for binding mediation.

“What happens in those cases is shutdowns on construction sites or it takes a long time for parties to work through the dispute,” he said. “The binding mediation process would fit neatly into that where person could try mediation and if they didn’t agree on a resolution, get a decision and move on.

Jack Zemlicka can be reached at [email protected].