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01-0007 Gray v. Eggert, et al.

By: dmc-admin//September 10, 2001//

01-0007 Gray v. Eggert, et al.

By: dmc-admin//September 10, 2001//

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“Under Wis. Stat. sec. 802.12(2), a trial court has authority to order parties in civil litigation to attempt mediation or other settlement processes to resolve a case. … Nowhere, however, does sec. 802.12 provide a court the authority to require resolution. Moreover, while the mediation process will often depend on the parties’ good faith and open-minded flexibility, it does not require any party to abandon a legal position or settle a case. …

“In this case, when the trial court commented that ‘[t]here was mention about a mediation, but there was no mention about sitting down and trying to resolve and settle the case in good faith,’ the court had no factual basis for reaching any conclusion about whether Gray or Milwaukee Transport had mediated in good faith. And when the trial court commented that ‘when defense counsel says they’ve offered zero, zero means zero, so the mediation process that existed was a sham or perfunctory,’ the court revealed its misunderstanding of the mediation process. After all, in some cases, depending on the information exchanged and the parties’ positions, successful mediation may produce recognition that ‘zero’ is a fair result. Clearly, therefore, it is error for a court to conclude, based on an offer of zero, that the mediation process ‘was a sham or perfunctory.’… Simply stated, the parties had complied with the order for mediation, but mediation had not produced a settlement. At that point, the court, understandably, instructed the parties to make one last effort to reach resolution. But the court had no authority to require resolution or to sanction either party for failing to agree.”

Judgment reversed.

Recommended for publication in the official reports.

Dist I, Milwaukee County, Amato, J., Schudson, J.

Attorneys:

For Appellant: Richard J. Krill, Milwaukee; Paul Voelker, Milwaukee; Kwame S. Green, Milwaukee

For Respondent: Ronald Bornstein, Milwaukee

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