By Jane Pribek
When attorneys David Russell and Dennis McGilligan volunteered 25 years ago to take part in a new program for Wisconsin farmers, they didn’t realize the then little-known process called “mediation” would explode in popularity.
In the years since, both attorneys have mediated dozens of cases for the Farm Mediation Program, which aims to help Wisconsin farmers facing legal and economic distresses.
“These folks, especially the farmers, want to be heard,” Russell said. “Sometimes they tell the other side, very emotionally, ‘I’m sorry I can’t pay you. I feel terrible about it. Here’s why.’ That’s a big part of it.
“It’s so much better to have a resolution that both or multiple parties have agreed to, rather than one that’s imposed upon them by a judge or arbitrator because they can’t agree.”
Russell said he felt compelled to volunteer for the program back in 1986 because he has farm roots.
McGilligan, though he is a self-professed “city boy,” said he enjoys getting out into rural communities and helping “real people with real problems.”
Russell and McGilligan are two of about 30 mediators from across the state who volunteer for the program, said its coordinator, Roger James of the Wisconsin Department of Agriculture, Trade and Consumer Protection in Madison. Volunteer mediators come from a variety of disciplines in addition to law, he said, including educators, professional alternative dispute resolution providers and even other farmers.
“We’ve had some mediators who’ve been with the program since it started,” James said.
Their longevity as volunteers says a lot about their commitment to preserve the family farm tradition in Wisconsin, he said.
The neutrals receive 40 hours of training initially, plus annual refreshers on new developments in ADR and farming.
The statistics vary, but on average approximately 100 disputes involving farmers on one or both sides annually go to alternative dispute resolution via the program, James said. That includes a handful of cases that settle before mediation even begins.
The free program, authorized by Wis. Stats. sec. 93.50 and administered by ATCP 162, is available for disputes between farmers and creditors, disputes over procurement or livestock feeding contracts, nuisance or environmental contamination disputes, or those that the DATCP deems appropriate for the program or where all the parties request ADR via the program.
In today’s economy, farmer-creditor disputes are the most common type of dispute, James said. Mediators often travel to the farmer’s community. Frequently, both sides are pro se, but sometimes they are accompanied by professionals from other disciplines such as accountants.
Both the statutes and regulations provide for mediation and arbitration, but facilitative mediation is by far the preferred process, with just a handful of arbitrations occurring over the past 25 years.
With very few exceptions, no one is compelled to participate in mediation before seeking redress in circuit court. Some states that have similar programs, such as Iowa and Minnesota, do require mediation, but James said he believes Wisconsin’s voluntary approach leads to better results.
The success rate of the program, including cases where a settlement or partial settlement is reached, or when people simply exit the program reporting that the process was beneficial to them, is near 90 percent.
“I think that’s why it works so well in Wisconsin,” James said. “We get only people who want to be there.”
Wisconsin was one of the first states in the nation to create this type of program, fueled largely by money from the U.S. Department of Agriculture, James said. State employees volunteer their service in administering it, representing a 20 percent “in-kind” match; no dollars from state coffers go toward the program.
Program money for the upcoming fiscal year is somewhat uncertain, James said, until Congress’ finalizes the federal government’s budget, which had yet to happen as of press time. The money does not come from a formal grant process, however, but is “certified,” making it an easier, faster process, he said.
McGilligan, who ran the program for a few years in the early 1990s, agreed.
“From a political standpoint, it has always received good bipartisan support,” he said.
As long as that support continues, the program can continue to result in positive outcomes such as a case McGilligan handled concerning an elderly woman who faced losing the farm that had been in her family for more than 150 years.
Due to her age and the sizable debt owed, McGilligan said, there was no way the woman would have been able to resolve the financial issues plaguing the farm without the mediation process.
“What she was able to get out of the mediation process was an opportunity to vent and express her sorrow at leaving the farm that had been in the family for generations,” he said. “Ultimately she was allowed to keep the house. But mostly, the program helped her let go, in a positive manner. I consider that to be a success.”
Jane Pribek can be reached at [email protected].