802.12(1)(h)(h) “Nonbinding arbitration” means a dispute resolution process in which a neutral 3rd person is given the authority to render a nonbinding decision as a basis for subsequent negotiation between the parties after the parties present evidence and examine witnesses under the rules of evidence agreed to by the parties or determined by the neutral 3rd person. 802.12(1)(i)(i) “Settlement alternative” means any of the following: binding arbitration, direct negotiation, early neutral evaluation, focus group, mediation, mini-trial, moderated settlement conference, nonbinding arbitration, summary jury trial. 802.12(1)(j)(j) “Summary jury trial” means a dispute resolution process that meets all of the following conditions: 802.12(1)(j)1.1. Attorneys make abbreviated presentations to a small jury selected from the regular jury list. 802.12(1)(j)2.2. A judge presides over the summary jury trial and determines the applicability of the rules of evidence. 802.12(1)(j)3.3. The parties may discuss the jury’s advisory verdict with the jury. 802.12(1)(j)4.4. The jury’s assessment of the case may be used in subsequent negotiations. 802.12(2)(a)(a) A judge may, with or without a motion having been filed, upon determining that an action or proceeding is an appropriate one in which to invoke a settlement alternative, order the parties to select a settlement alternative as a means to attempt settlement. An order under this paragraph may include a requirement that the parties participate personally in the settlement alternative. Any party aggrieved by an order under this paragraph shall be afforded a hearing to show cause why the order should be vacated or modified. Unless all of the parties consent, an order under this paragraph shall not delay the setting of the trial date, discovery proceedings, trial or other matters addressed in the scheduling order or conference. 802.12(2)(b)(b) The parties shall inform the judge of the settlement alternative they select and the person they select to provide the settlement alternative. If the parties cannot agree on a settlement alternative, the judge shall specify the least costly settlement alternative that the judge believes is likely to bring the parties together in settlement, except that unless all of the parties consent, the judge may not order the parties to attempt settlement through binding arbitration, nonbinding arbitration or summary jury trial or through more than one of the following: binding arbitration, early neutral evaluation, focus group, mediation, mini-trial, moderated settlement conference, nonbinding arbitration, summary jury trial. 802.12(2)(c)(c) If the parties cannot agree on a person to provide the settlement alternative, the judge may appoint any person who the judge believes has the ability and skills necessary to bring the parties together in settlement. 802.12(2)(d)(d) If the parties cannot agree regarding the payment of a provider of a settlement alternative, the judge shall direct that the parties pay the reasonable fees and expenses of the provider of the settlement alternative. The judge may order the parties to pay into an escrow account an amount estimated to be sufficient to pay the reasonable fees and expenses of the provider of the settlement alternative. 802.12(3)(3) Actions affecting the family. In actions affecting the family under ch. 767, all of the following apply: 802.12(3)(a)(a) All settlement alternatives are available except focus group, mini-trial and summary jury trial. 802.12(3)(b)(b) If a guardian ad litem has been appointed, he or she shall be a party to any settlement alternative regarding custody, physical placement, visitation rights, support or other interests of the ward. 802.12(3)(c)(c) If the parties agree to binding arbitration, the court shall, subject to ss. 788.10 and 788.11, confirm the arbitrator’s award and incorporate the award into the judgment or postjudgment modification order with respect to all of the following: 802.12(3)(d)(d) The parties, including any guardian ad litem for their child, may agree to resolve any of the following issues through binding arbitration: 802.12(3)(e)(e) The court may not confirm the arbitrator’s award under par. (d) and incorporate the award into the judgment or postjudgment modification order unless all of the following apply: 802.12(3)(e)1.1. The arbitrator’s award sets forth detailed findings of fact. 802.12(3)(e)2.2. The arbitrator certifies that all applicable statutory requirements have been satisfied. 802.12(4)(4) Admissibility. Except for binding arbitration, all settlement alternatives are compromise negotiations for purposes of s. 904.08 and mediation for purposes of s. 904.085. 802.12 HistoryHistory: Sup. Ct. Order No. 93-13, 180 Wis. 2d xv; 1995 a. 225; 1997 a. 191; 1999 a. 9; 2005 a. 443, s. 265; 2019 a. 95. 802.12 NoteComment, 2008: See s. 807.05, formal requirements to render binding agreements reached in an action or special proceeding. In some cases, such as family law cases, court approval is required for an agreement to be effective.
802.12 NoteNOTE: Sup. Ct. Order No. 05-05 states that “the comments to Wis. Stat. §§ 807.05 and 802.12 are not adopted but will be published and may be consulted for guidance in interpreting and applying the statutes.” 802.12 NoteJudicial Council Note, 1993: This section provides express statutory authority for judges to order that litigants attempt settlement through any of several defined processes. The parties may choose the type of process, the service provider, and the manner of compensating the service provider, but the judge may determine these issues if the parties do not agree.
802.12 NoteSubsection (2) (b) prohibits the judge from requiring the parties to submit to binding arbitration without their consent; this restriction preserves the right of trial by jury. Nor may the judge order nonbinding arbitration, summary jury trial or multiple facilitated processes without consent of all parties; these restrictions allow the parties to opt out of the typically more costly settlement alternatives.
802.12 NoteLawyers have a duty to their clients and society to provide cost-effective service. The State Bar encourages lawyers to provide volunteer service as mediators, arbitrators and members of settlement panels.
802.12 NoteSubsection (3) sets forth several special considerations for family actions. Even when the parties consent to binding arbitration, the court retains the responsibility of ensuring that the arbitration award in custody, placement, visitation and support matters conforms to the applicable law. The court is not bound to confirm the arbitrator’s award. Rather, it must review the arbitrator’s decision in light of the best interest of the child. If following this review the court finds that the arbitration process and its outcome satisfy the requirements of all applicable statutes, the court may adopt the decision as its own. Miller v. Miller, 620 A. 2d 1161, 1166 (Pa. Super. 1993). Reasons for deviating from child support guidelines must be in writing or made part of the record.
802.12 NoteThe Judicial Council has petitioned the Supreme Court to conduct a review and evaluation of this rule after it has been in effect for three years.
802.12 AnnotationWhen multiple plaintiffs had similar claims against a single defendant, it was not appropriate to conduct a test case then grant summary judgment, based on the test case results, to the plaintiffs who were not part of the test case. Leverence v. PFS Corp., 193 Wis. 2d 317, 532 N.W.2d 735 (1995). 802.12 AnnotationThis section does not authorize a trial court to require resolution of an action, nor does it require any party to abandon a legal position or to settle a case. Gray v. Eggert, 2001 WI App 246, 248 Wis. 2d 99, 635 N.W.2d 667, 01-0007. 802.12 AnnotationSub. (3) (c) cannot limit a circuit court’s power to consider the equity of agreements in confirming an arbitrated property division. However, circuit courts must give greater deference to an arbiter’s award of a property division under sub. (3) (c) than they would to other types of agreements. Franke v. Franke, 2004 WI 8, 268 Wis. 2d 360, 674 N.W.2d 832, 01-3316. 802.12 AnnotationWisconsin’s New Court-Ordered ADR Law: Why It Is Needed and Its Potential for Success. Weinzierl. 78 MLR 583 (1995).
802.12 AnnotationAlternative Dispute Resolution in Wisconsin: A Court Referral System. Noonan & Bostetter. 78 MLR 609 (1995).
802.12 AnnotationAlternative Dispute Resolution: Hanging Up the Gloves of Confrontation? Tenenbaum. Wis. Law. Aug. 1994.
802.12 AnnotationThe New ADR Referral Statute: Resolving Conflicts Outside Wisconsin Courtrooms. Soeka & Fullin. Wis. Law. Aug. 1994.
802.12 AnnotationThink Like a Negotiator: Effectively Mediating Client Disputes. Frankel & Mitby. Wis. Law Dec. 2003.
