December 2016

ADR ALTERNATIVE DISPUTE RESOLUTION

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 ADR
Decemb
er 2016

ALTERN
ATIVE DISP
UTE RESOLU
TION
INSIDE:

A
ADR ALTERNATIVE DISPUTE RESOLUTION
December 2016

COMMENTARY
8 Inspiring trust during
mediation, negotiations

2 4 6 9 Arbitration: Efficient and

economical form of ADR?
ROUGH DRAFT AN EPIC CASE JURY STILL OUT
Case in front of Supreme Court SCOTUS could take up case States high court to consider
would allow lawyer-mediators challenging arbitration clauses first case involving alternative to
to craft documents arbitration agreements

DIRECTORY | 11 - 12

Publisher
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Editor Advertising Director New Media Specialist
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Associate Editor Account Executive Contributor
Dan Shaw, dshaw@wislawjournal.com Susan Berna, sberna@wislawjournal.com Erika Strebel
Staff Photographer Account Executive Designer
Kevin Harnack, kharnack@wislawjournal.com Jenny Byington, jbyington@wislawjournal.com Michael Duntz

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STAFF PHOTO BY KEVIN HARNACK
ROUGH DRAFT Proposal in front of Supreme Court would
give lawyer-mediators in family cases
the ability to craft documents
By Erika Strebel
estrebel@wislawjournal.com
The Wisconsin Supreme Court is asking prac-
titioners and others to weigh in ona proposed
rule change that would allowlawyers who me-
diate family law disputes to also draft legal doc-
uments that result from those negotiations.
The high courts current rules prohibit law-
2 W I S C O N S I N L A W J O U R N A L A LT E R N AT I V E D I S P U T E R E S O L U T O N
yers who are mediators fromdrafting the legal
documents parties need to obtainjudicial re-
lief. Nothing, though, keepsnon-lawyers from
preparing that paperwork.
A petition now before the Supreme Court
is asking for a rule change that would let law-
yer-mediators draft the documents. The pro-
posal would not come without limits, though.
ROUGH DRAFT, continued on page 3
D E C E M B E R 2 01 6
 CHIME IN
The Wisconsin Supreme Court is
considering a proposal that would
allow lawyers who mediate family-law
disputes to also draft the documents
that result from those mediations.
ROUGH DRAFT, continued from page 2
To draft documents, lawyers would first have to
pledge to remain neutral and would have to get
informed consent from the parties in a case.
Mediators already have a responsibili-
ty to remain neutral during mediations. The
proposed rule would simply expand that re-
sponsibility, said Marsha Mansfield, a Madi-
son attorney who runs the Economic Justice
Institute, a group thatoffers civil legal aid to
low-income clients and others.
All in all, the proposal is good one, Mans-
field said.
It think it is a sensible effort to provide more
resources to litigants who otherwise would be
going through the family courts without any le-
gal assistance at all, she said.
The proposed rule changeis part of an at-
temptto reduce the number of family court lit-
igants who do not have legal representation.
According to the petition memo, 70 percent of
family court litigants do not hire lawyers, and
95 percent of family court cases are resolved
through written settlement agreements.
Of those agreements, many are not being
drafted by lawyers. Without the benefit of le-
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6 ADR directory.indd 1 W I S C O N S I N L A W J O U R N A L A LT E R N AT I V E D I S P U T E R E S O L U T O N
A public hearing on the proposal is
scheduled for 9:30 a.m. Jan. 12 in the
Supreme Court Hearing Room in the
state Capitol. Visit https://wicourts.gov
for more information.
gal expertise, litigants often end up having to
return to court at a later date.
If the Supreme Court does adopt the pro-
posed rule, the hope is that litigants will start
coming to court better prepared, Mansfield
said. Court procedures should become gener-
ally more efficient, she said.
Mansfieldnoted that the proposal has been
vetted and supported by organizations such
as the Wisconsin State Bar.
Mansfield said one pointto keep in mind is that
the new rule would require lawyers to not let their
work standards slip when they are working for
parties in mediation, rather than regular clients.
They have to do it competently and dili-
gently, Mansfield said.
The biggest difference is that lawyers work-
ing on mediations would not have the standard
attorney-client relationship with the parties.
Therule-change petition was submitted to
the Supreme Court in October by the Direc-
tor of State Courts. The proposal ultimately
stemsfromthe Planning and Policy Advisory
Committee, which helps the high court and
the Director of State Courts set long-term
goals for the states court system.
Attorney Matt
Cornetta
Attorney Dan Attorney Russ Attorney Kevin
Peters Wilson Wolf
11/5/2013 1:56:41 PM 3

By Erika Strebel
estrebel@wislawjournal.com
Should the medical-technology firm Epic
Systems and other companies be able to re-
quire that employees sign on to agreements
forcing them to take labor disputes to inde-
pendent arbitrators rather than court?
That question could be taken up next year
by the U.S. Supreme Court in a dispute that
could have far-reaching ramifications for
mandatory arbitration agreements and labor
law. If the court does accept the case, the
justices will be asked to consider whether
Lewis case hasin fact driven a wedge
between federal appeals courts. Judges
from different jurisdictions have yet to
reach consensus on the question ofwhether
arbitration agreements can violate the NLRA.
Jacob Lewis, a former technical writer at
Verona-based Epic Systems Corp.,shouldbe
legallybound bya document he had to sign to
get his job at the company.
The document in question a type of arbi-
4 W I S C O N S I N L A W J O U R N A L A LT E R N AT I V E D I S P U T E R E S O L U T O N
SCOTUS could weigh in on
7thCircuits decision on
employment agreements
arbitration clause
tration agreement was meant to waive his
right to band together with other employees
to take his then-employer to court. Should a
legal dispute arise,Lewis and his colleagues
were to have only one means of recourse: En-
tering one by one into arbitration proceedings.
The agreement was quickly invoked when
Lewis and other employees tried to file a
class-action lawsuit alleging they were owed
overtime by Epic Systems. In fighting back, the
company and its legal representatives insisted
on the validity of contract provisions both pre-
cluding class actions and requiring employees
to seek resolutions through arbitration.
The case has once again drawn attention
to arbitration proceedings. Critics have long
alleged that arbitration unfairlyfavors corpo-
rations and large employers over individual
plaintiffs.
Although the arbitrators who are appoint-
ed in such cases are supposed to be neutral,
many critics perceive the proceedings to be
nothing more than a means of stacking the
deck in favor of employers. Still others ques-
tion the legality of requiring someone to sign
away his right to file class-action suits.
Its no coincidence that scrutiny of this sort
has become increasingly common at a time
that has also seen arbitration clauses become
a nearly ubiquitous presence in contracts for
everything from credit cards to Internet service.
But whatever valid points the critics might
be making, the courts have largely found the
agreements to be legally sound. Companies,
as a result, have become emboldened to add
arbitration clauses to an ever-greater number
of consumer and employment agreements,
largely with the goal of protecting corporate
profits from possible legal liabilities.
The current state of the law can largely be
traced back to the broad interpretation that
the U.S. Supreme Court started giving to the
Federal Arbitration Act in the 1990s. That act,
put into effect in 1925 to encourage arbitration
between commercial parties, simply provides
that arbitration clauses shall be valid, irrevo-
cable, and enforceable.
Arbitration clauses were also affirmed in
cases the U.S. Supreme Court handed down
in 2011 and 2013. Yet, despite these prece-
dents, Lewis lawyers managed to persuade
federal circuit courts to take their clients side.
The attorneys argue that the issues in Lew-
is suit differ in several ways from those found
in the previous, precedent-setting cases. First
and foremost, Lewis allegations deal with
employment law, which was not discussed in
any of the Supreme Court cases. Also, those
cases had largely concerned the conflicts
that arise when both state and federal laws
are applied to arbitration agreements. Lewis
case instead deals only with federal law.
Lewis lawyers, Jason Knutson of Habush
Habush & Rottier and David Zoeller of Hawks
Quindel in Madison, have argued those points
EPIC, continued on page 5
Verona-based Epic requires its employees to sign an
agreement that precludes them from suing the company
over wage-related claims.
STAFF PHOTO BY KEVIN HARNACK
D E C E M B E R 2 01 6
EPIC, continued from page 4
in the lower courts. Perhaps their most funda-
mental contention is that the Federal Arbitra-
tion Act should not be read by itself in cases
like Lewis, but rather in conjunction with the
National Labor Relations Act. That second
act, also known as the NLRA, provides that
employees have a right, as a group, to choose
either courts or arbitration as a means of
bringing a wage claim against an employer.
Support for those arguments comes from
the National Labor Relations Board, the agen-
cy charged with enforcing the NLRA. The
board held in 2012 that employers may not use
arbitration agreements to force employees to
waive their right to go to court as a class over
employment claims.
Generally speaking, courts leave the inter-
pretation of particular laws to the agencies
charged with enforcing them. The only excep-
D E C E M B E R 2 01 6 W I S C O N S I N L A W J O U R N A L A LT E R N AT I V E D I S P U T E R E S O L U T O N
tion is for cases in which an agencys inter-
pretation was clearly erroneous.
Despite these standard practices, three
federal appeals courts have essentially cho-
sen to ignore the NLRBs rulings regarding ar-
bitration agreements. One of the first to do so
was the 5th Circuit, which provided almost no
explanation when it handed down a decision
overturning the NLRBs holding from 2012,
said Marquette law professor Paul Secunda.
Rather than elicit more unanimity, though,
Lewis case has in fact driven a wedge be-
tween federal appeals courts. Judges from
different jurisdictions have yet to reach con-
sensus on the question ofwhether arbitration
agreements can violate the NLRA.
The first circuit court to take Lewis
sidewas the 7th Circuit, which ruled in May
that the NLRBs interpretation should be given
deference.The 9th Circuit followed in August.
Epics appeal came the following the month.
David Zoeller (left) of Hawks Quindel and Jason Knutson
of Habush Habush & Rottier are arguing that federal
labor law invalidates arbitration agreements that prevent
employees from suing taking legal disputes against their
employers to court. The case may land at the U.S. Supreme
Court in 2017. STAFF PHOTO BY KEVIN HARNACK
Although its still unknown if the Supreme
Court will step in to resolvethe discrepancy,
various groups are already coming forward
with attempts to sway the justices opin-
ions.Within two weeks of Epics appeal, two
petitions for certiorari had been filed in cas-
es involving the enforceability of arbitration
agreements in employment contracts.
In Lewis case, eight organizations have
filed amicus briefs, including the International
Association of Defense Counsel, the National
Association of Manufacturers and U.S Cham-
ber of Commerce.
The justices are scheduled to discuss Epics
petition for certiorari at a conference in January.
5
JURY DISMISSED?
States high court to consider first case involving
alternative to arbitration agreements
By Erika Strebel
estrebel@wislawjournal.com
Even as some companies continue using
arbitration clauses to push employees and
consumers to resolve their cases outside
court, others are finding they can achieve the
same goals by avoiding going before a jury.
Their main means of doing so are so-called
contractual jury-waiver agreements. Similar
to arbitration clauses, agreements of this sort
prevent legal battles from going through what
are still widely considered standard court
proceedings, despite their increasing rarity.
The big difference is that, with jury waivers,
cases can still go to court. Its just that it will
be a judge, rather than a jury, who will be pro-
viding the resolution.
Jury-trial waivers are becoming an ev-
er-more standard presence in loan agree-
ments and in some employment agreements.
In Wisconsin, they are often found in commer-
cial-loan agreements.
Their increasing popularity is in part a re-
sult of their ability to help defendants avoid
I think this is a very hard case to
defend. The Wisconsin Supreme Court
is going to look at, Can we let people
out of written contracts in a commercial
context if all they argue is that they
were not aware or had no choice?
Briane Pagel
Kerkman & Dunn consumer litigator
6 W I S C O N S I N L A W J O U R N A L A LT E R N AT I V E D I S P U T E R E S O L U T O N
the high costs of jury trials. They also are
relatively free of what some critics deem the
drawbacks of arbitration: inconsistent deci-
sions and higher filing costs.
Nor is arbitration always the time-saver that
some lawyers believe it to be. Large commercial
cases that go to arbitration have been known to
take as long as those that stay in court.
Having become a subject of controversy,
arbitration clauses have been heavily litigated
in recent years. Jury-trial waivers, in contrast
have had to stand up to relatively few challeng-
es. Federal and state courts have generally
found them to be enforceable as long as they
are entered into knowingly and voluntarily.
This is not to say there are no outliers
among states. Georgia and California courts
have handed down decisions deeming all
jury waivers invalid, while Texas courts have
come to just the opposite conclusion.
The U.S. Supreme Court, for its part, has yet
to take up a case questioning the validity of
jury waivers. And no consensus has yet been
reached over who has the burden of proving
the agreements are enforceable.
Conen later upheld the waiver, finding that
year delay in raising its objection had been
Like the U.S. Supreme Court, Wisconsins
high court has yet to weigh in on a case test-
ing the validity of jury waivers. It will get its
first chance to do so next year in a lawsuit
filed in 2011 against Green Bay-based Asso-
ciated Bank.
The suit, brought by Carol and Taft Parsons
of Milwaukee, alleges that Associated Bank
should be held liable for the actions of a loan
officer who had helped them borrow money
in 2003 and 2004 for a redevelopment project
they wanted to pursue in their neighborhood,
near Hampton Avenue and 46th Street.
We thought, why not build something
here? Taft Parsons said.
But their plans proved easier to talk about
than carry out. The Parsons soon found that
little progress was being made even though
they had paid out most of the money they had
borrowed to their contractor.
They later learned that their contractor,
Central City Construction, owed thousands of
dollars to the IRS. The bank demanded repay-
ment, and the Parsons declared bankruptcy to
prevent the loss of their home.
The Parsons sued in 2011 in an attempt at
recovering the money they had spent trying
to keep their home. Three years passed, and
a date for a jury trial was set. Only then did
Associated Bank note that the paperwork Taft
Parsons had signed to get his construction
loan had contained a document waiving his
right to appear before a jury.
Despite the passage of so much time, Mil-
waukee County Circuit Court Judge Jeffrey
Taft Parsons had acted in a knowing and vol-
untary manner when he signed it.
The District 1 Court of Appeals was of a
different mind, though. The three-judge panel
ruled in May that Associated Banks three-
too long. The judges also found that the bank
had failed to show any evidence that the Par-
sons had willingly or voluntarily agreed to
waive their right to go before a jury.
Rollie Hanson, a Milwaukee consumer law-
yer at the Law Office of Rollie R. Hanson, said
the appeals courts decision was a welcome
JURY, continued on page 7
D E C E M B E R 2 01 6
JURY, continued from page 6
departure from a fairly recent series of disap-
pointing U.S. Supreme Court cases.
Wisconsin, I think, is bucking the trend,
he said. A lot of states are embracing that,
but Wisconsin is not.
How long Wisconsin will remain outside the
mainstream will be up to the state Supreme
Court, which accepted Associated Banks ap-
peal in September.
Banks and financial institutions in the state
are watching the case closely, said Mindy Rice,
a banking and finance attorney at Husch Black-
well in Milwaukee. The Wisconsin Bankers As-
sociation, for instance, submitted a brief in June
urging the Supreme Court to clarify Wisconsins
laws involving contractual jury waivers and
commercial-loan agreements.
Rice said many of Husch Blackwells larger
lending clients favor jury-trial waivers over
other sorts of alternative dispute resolutions.
One reason for this preference is that it gives
them more certainty that the terms of loan
documents will be respected.
Theres a pretty clear nationwide trend
that jury trial waivers generally are enforce-
D E C E M B E R 2 01 6 W I S C O N S I N L A W J O U R N A L A LT E R N AT I V E D I S P U T E R E S O L U T O N
able if given knowingly and voluntarily, Rice
said. And I would hate to see Wisconsin go
down a path that did not join that majority, be-
cause it is something that commercial parties
and lenders would have concerns about.
Briane Pagel, a consumer litigator at Ker-
man & Dunn, said it seems unlikely that the
state Supreme Court will side with Taft Par-
sons, especially since he was trained as a
structural engineer and thus could be expect-
ed to have a certain amount of expertise.
I think this is a very hard case to defend, he
said. The Wisconsin Supreme Court is going to
look at, Can we let people out of written con-
tracts in a commercial context if all they argue
is that they were not aware or had no choice?
Hanson countered that the conservative
bloc that now dominates Wisconsins Supreme
Court might be disinclined to go along with so
strict an interpretation. Contract law, he said,
still requires a meeting of the minds, even when
both parties to a deal have some expertise.
In the commercial arena you still want
people to know what they are doing, he said.
If the jury trial waiver was not knowing and
voluntary, theres a pretty strong argument to
throw it out. Yet, if youre going to have a court
Attorney Alex Flynn is representing Taft and Carol
Parsons in an arbitration agreement case. The Parsons
tried to redevelop part of their Milwaukee neighborhood
at 46th Street and Hampton Avenue into townhouses, but
a contractor and loan officer, both of whom later pleaded
guilty to a bank fraud scheme, left them with thousands
of dollars in debt. Parsons have sued the bank that issued
them the loans for the project in order to recover the
money they lost. STAFF PHOTO BY KEVIN HARNACK
that says if you signed it, its in the paperwork,
you didnt read it, tough. That could be kind of
a hard sell to some of the judges up there.
Pagel says he also thinks the Wisconsin Su-
preme Court will use the Parsons case to clear
up certain squishy precedents concerning
the doctrine of unconscionability, which calls
on courts to examine whether an agreement
was unreasonably unfair to a party.
Current case law makes it hard for litigants
to know whether a judge is likely to agree with
arguments contending that a particular contract
was unconscionable, he said. Pagel predicted
the justices will make it difficult for lawyers to
win with arguments alleging unconscionability.
I can definitely see them doing that given
the current makeup of the court, he said.
7
Inspiring trust
during mediation,
negotiation
When Ronald Reagan famously mon, we can connect by demonstrat-
quoted the Russian proverb, trust, ing a genuine understanding of each
but verify, what he really meant was, othersinterests. Actions, like looking
dont trust at all. someone in the eye and talking direct-
But in negotiating agreements, the ly to him or her, develop a connection.
converse is probably more true: Ver- Reveal your own interests and
ify, but trust. Because even after our grievances.For example, one can ac- er than not living up to your word.
most diligent verification and despite knowledge I have a very difficult cli- Explain your position.Flat declara-
all of our most cynical planning, no ent or I get a bonus if I can settle this tions create suspicion. Why cant you
Before becoming deal can be made without some de- case by the end of the year. Opening do X? Why wont you? Adding those
gree of trust. Deals require that leap the door even slightly to your own why details, even late in a negotia-
a mediator with
of faith that everyone especially thoughts and interests gives those tion, helps the other side understand
ADR Systems, trial lawyers fear like the plague. around us somethingto connect with. your interests and motivations.
Judge Michael R. But thats how it is: no trust, no deal. Trust.Trust inspires trust. Sending out Maintain the trust youve estab-
Panter presided And most lawyers need to make deals a test trust balloon, like a meaningful lished. Nourish the embers of trust
over civil jury in most of their cases. first offer even in the face of a ridicu- like Tom Hanks character trying to
trials, motions The more you and your opponents lously high demand, sends an important start a fire in Castaway. When
and hundreds of can reasonably trust each other, the message: We invite you to see that those embers go out, theyre hard as
faster you will come to an agreement. were serious about settling the case for heck to relight.
pre-trials, taught
Of course, every negotiation requires a fair price. Trust us by responding with Trust truly is a two-way street.Its
law school and a more meaningful demand. your job to instill in your opponent
an assessment of the risks associated
was an a trial with the proposed deal, and some deals Keep your promises.Do not agree enough trust in you to get a deal.
lawyer for require too much trust to be acceptable. to anything that you cannot deliver Those who learn to instill trust, natu-
38 years. (You dont have to be Charlie Brown and deliver whatever you agree to. rally and confidently, have acquired a
trusting Lucy once again not to pull Virtually nothing destroys trust fast- very useful skill indeed.
the football away; sometimes, walk-
ing away really is the best course for
your client.)
But most of the time, negotiation
and settlement are the best options.
In litigation, that means fewer ob-
jections and less time in the motion
courts. In mediation, it means more
cases that can be settled earlier and
more efficiently.
How can you inspire trust when
it comes to sit down for mediation?
Here are a few ways:
Connect. The more we feel con-
nected to someone, the more we trust
him. Connection comes from what we
say, and whether we share similar
interests and backgrounds (such as
friends, schools and work) or even
similar difficulties or conflicts. Even if
THINKSTOCK PHOTOS we have nothing apparently in com-
8 W I S C O N S I N L A W J O U R N A L A LT E R N AT I V E D I S P U T E R E S O L U T O N D E C E M B E R 2 01 6
A R B I T R AT I O N :
Efficient and economical
form of ADR? It depends
Although arbitration is generally re-
garded as an efficient and economical
system of alternative dispute resolution,
the standard of judicial review for arbi-
tration awards varies from state to state.
Whats more, the Federal Arbitra-
tion Act, 9 U.S.C. 10-11, provides its
own, very narrow, standard of review,
which some states follow.
Robert D. Cohan When youre contemplating an
is a founding
arbitration clause in an agreement,
a necessary concern should be the
partner of
standard of judicial review to which an
Cohan, Rasnick, arbitration award will be subjected.
Myerson, Plaut It is important to consider: Does
in Boston. your client want an efficient and eco-
His practice nomical resolution of a dispute? Or
emphasizes would the client prefer to preserve a
business right to appeal an award in response
toa plain mistake of law?
litigation on a
If it is indeed a quick and relatively
contingent fee
inexpensive resolution that he wants,
basis. He can then he should known he may have
be contacted at to surrender his appellate rights.
rcohan@crmllp. A second necessity, if the pres-
com. ervation of appellate rights is para-
mount, is to choose an arbitrator who
understands the law.
Two recent cases from Massa-
chusetts and New Hampshire pres-
ent a study in contrasts.
In Finn v. Ballentine, the New
Hampshire Supreme Court affirmed a
Superior Court decision that vacated
an arbitration award on the grounds
that the arbitrator had made a plain
mistake of law.
Jamie N. Hage
Under New Hampshire law, the
is a founding
Superior Court may modify or vacate
member of an award for plain mistake, or
Hage Hodes fraud, corruption, or misconduct by the
in Manchester, arbitrators, or on the grounds that the
N.H. He can arbitrators exceeded their powers.
be contacted The plain mistake standard per-
at jhage@ mits New Hampshire courts to vacate
awards if they find that an arbitrator
hagehodes.com.
misapplied the law to the facts.
Cohan and Hage
The plaintiff argued that the much
represented the narrower FAA standard of review should
plaintiff in Finn v. have applied in the case because it su-
Ballentine. perseded New Hampshire state law.
D E C E M B E R 2 01 6 W I S C O N S I N L A W J O U R N A L A LT E R N AT I V E D I S P U T E R E S O L U T O N
That FAA standard provides that
courts can disturb an arbitrators
award only in the event that: (1) an
award was procured by corruption,
fraud or undue means; (2) there was
evident partiality or corruption on the
part of the arbitrator; (3) there was
misconduct by the arbitrator in con-
ducting the hearing, such that a party
was prejudiced; or (4) the arbitrator
exceeded his power or failed to make
a mutual, final and definite award.
The New Hampshire Supreme Court
disagreed, ruling that the U.S. Supreme
Court has yet to explicitly state that the
FAA standard of review supersedes
state standards, and that the New
Hampshire standard should apply. The
Until there is a uniform
standard for appellate reviews
of arbitration awards, attorneys
should be aware of how choices
of governing law provisions may
affect dispute resolutions.
Superior Courts decision vacating the
award for a plain mistake of law was
affirmed.
Here, we should point out that it is
unlikely that the award would have
been overturned had the FAA standard
of review been applied.
Also, note the arbitration award in
Finn was entered on Nov. 25, 2014. The
Superior Court vacated the award on
May 14, 2015, and the New Hampshire
Supreme Court affirmed that reversal on
Jan. 27, 2016 more than a year after
the award had been entered. Arbitration
in New Hampshire, at least in Finn, was
neither efficient nor economical.
Because the standard of review
established by the New Hampshire
statute is much less deferential to ar-
bitrators decisions, it can provide your
client with more favorable grounds to
appeal an unfavorable award. That
comes with the sacrifice of the speed
and costs savings that are normally
the reasons for choosing arbitration in
the first place.
Until there is a uniform standard
for appellate reviews of arbitration
awards, lawyers should be aware of
how the choice of governing law pro-
visions can affect dispute resolutions.
The FAA imposes a restrictive stan-
dard of review, and it has supersededthe
law of many states that are less restric-
tive. Under federal law, a mere mistake
of law by an arbitrator cannot serve as
the basis for judicial review.Dennis v.
Wachovia Securities, LLC, 429 F. Supp.
2d 281, 288 (D. Mass. 2006).
As noted by the New Hampshire
Superior Court, this view of the law
is different from that taken by the New
ARBITRATION, continued on page 10
9

ARBITRATION, continued from page 9
Hampshire Supreme Court, which affords no
deference to an arbitrators determination as to
what the controlling law is. Finn v. Ballentine
Partners, LLC, No. 2013-CV-012, 2015 N.H. Super.
LEXIS 3, at *15 (N.H. Super. Ct. April 9, 2015).
It is well established in many jurisdictions
that, when a state statute provides lesser
protection for arbitration agreements and
awards, it is superseded by the provisions of
the FAA. Thomas Diaz, Inc. v. Columbina S.A.,
831 F. Supp. 2d 528, 532 n.1 (D.P.R. 2011).
It is common in other states for a con-
flict between state and federal standards
of review to exist, but it is not the norm. As
observed by the Florida Supreme Court, it
makes more sense to have a national policy
favoring arbitration with just the limited re-
view needed to maintain arbitrations essen-
tial virtue of resolving disputes straightaway.
Visiting Nurses Assn of Florida Inc. v. Jupiter
Med., Inc., 154 So. 3d 1115, 1132 (Fla. 2014).
10 W I S C O N S I N L A W J O U R N A L A LT E R N AT I V E D I S P U T E R E S O L U T O N
Given the vagaries and variances in state
laws, there are several considerations to take
into account when you are weighing whether
to include an arbitration clause in an agree-
ment. The first is: To what extent is your client
willing to sacrifice his appellate rights in or-
der to preserve arbitration as an efficient and
economical resolution of disputes?
If your client wants to take a more efficient
and economical course, be sure to knowthe
laws of whatever state you plan to make use
of arbitration in. Alternatively, you might sim-
ply make a stipulation stating that any appeal
is subject to the FAA.
On the other hand, if your client wants to
preserve his appellate rights in order to be
protected from a plainly incorrect award, then
selecting a state such as New Hampshire,
with its less deferential law, is necessary.
No matter which state you choose, the
selection of the arbitrator will also be a
paramount concern. It is imperative to
choose an arbitrator who is able to both
THINKSTOCK
understand and apply the law correctly.
In Finn, the arbitration panel included for-
mer New Hampshire Supreme Court Chief
Justice John T. Broderick. One would think
that he would craft an award that would not
include a mistake of law. And yet, the state
Supreme Court said that is exactly what hap-
pened. Finn, No. 2015-0332, at *32.
With a nod to Brodericks stature as a jurist,
the court stated that it is under no obligation
to assume proper application of the law from
the panel members resumes. Id. Even the
careful selection of an arbitrator who is well
versed in the law is no guarantee the award
will be affirmed.
Until there is a uniform standard for appel-
late reviews of arbitration awards, attorneys
should be aware of how choices of governing
law provisions may affect dispute resolutions.
Without a uniform standard that narrows the
opportunities for appellate review, it may not
be advantageous to clients to have arbitration
clauses in contracts.
D E C E M B E R 2 01 6
PROFESSIONAL DIRECTORY LISTINGS ADR
BROOKS, CHRISTY Master in Divorce and Family Law, also KUSHNER, BETH
von Briesen & Roper, s.c. mediation in guardianship, probate, von Briesen & Roper, s.c.
411 E. Wisconsin Ave., Suite 1000 consumer, and civil. 411 E. Wisconsin Ave., Suite 1000
Milwaukee, WI 53202 Service Area: Wisconsin Milwaukee, WI 53202
Phone:414-287-1232 Phone:(414) 287-1373
Fax:414-238-6517 GERLACH, GARY A. Fax:414-238-6672
Email:cbrooks@vonbriesen.com Resolute Systems Inc. Email:bkushner@vonbriesen.com
Website:vonbriesen.com 1661 N. Water St., Suite 501 Website:vonbriesen.com
Practice Area: Alternative Dispute Milwaukee, WI 53202 Practice Area: Alternative Dispute
Resolution, Divorce and Family Law Phone: 800-776-6060 Resolution
Service Area: Wisconsin Fax: 414-270-0932 Service Area: Wisconsin
Email:
BRADBURY, PHILIP WeinzierlME@ResoluteSystems.com LEVIT, JR., WILLIAM H.
von Briesen & Roper, s.c. Website: ResoluteSystems.com Levit ADR LLC
10 E. Doty St., Suite 900 Practice Area: All Civil & Family 250 E. Wisconsin Ave., Suite 1800
Madison, WI 53703 Service Area: Wisconsin Milwaukee, WI 53202
Phone:608-310-3603 Phone:414-223-5791
Fax:608-316-3162 HANSEN, SUE Mobile:414-254-9918
Email:pradbury@vonbriesen.com Hansen & Hildebrand, S.C. Fax:414-347-7877
Website:vonbriesen.com 126 N. Jefferson Street, Suite 401 Email:wlevit@levitadr.com
Practice Area: Alternative Dispute Milwaukee, WI 53202 Website:levitadr.com
Resolution, Real Estate Phone: 414-273-2422 Practice Area: Arbitration
Service Area: Wisconsin Email: sah@h-hlaw.com and Mediation
Website: familymediationcenter.org Service area: USA and Overseas
CROOKS, MICHAEL Practice Area: family law, with an Fellow, College of Commercial
Peterson, Johnson & Murray, S.C. emphasis on collaborative divorce and Arbitrators; Chartered Arbitrator
3 S. Pinckney St., Suite 900 mediation and Fellow, Chartered Institute of
Madison, WI 53703 Service Area: Wisconsin Arbitrators (London); Arbitration
Phone:608-256-5220 Panel of the Chartered Institute of
Arbitrators; CPR International Institute
Fax: 60-256-5270 HILDEBRAND, GREGORY for Conflict Prevention and Resolution,
Email:mcrooks@pjmlaw.com Hansen & Hildebrand, S.C.
Website:pjmlaw.com Regional,Insurance,Healthcare and
126 N. Jefferson Street, Suite 401
Practice Area: Business disputes, Life Sciences,Franchise,Challenge
Milwaukee, WI 53202
civil litigation, commercial litigation, and General Counsel Arbitration and
Phone: 414-273-2422
contracts, tort litigation Mediation Panels and Special Arbitrator
Email: gmh@h-hlaw.com
Panel; International Centre for Dispute
Website: familymediationcenter.org
Resolution Arbitration and Mediation
FITZGERALD, MICHELLE Practice Area: divorce, child custody
Panels; U.S. News Best Law Firms,
Horizons Law Group LLC and placement matters, as well as
InternationalCommercialArbitration
611 N. Barker Road, Suite 209 paternity, adoption, guardianship and
Tier 1 Milwaukee 2017;American
Brookfield, WI 53045 estate planning. He is also a trained
Arbitration Association Commercial;
Phone:262-432-3600 and experienced mediator and assists
Large, Complex Case; M&A; Joint
Fax:262-432-3605 parents and couples in resolving child-
Venture and Mediation Panels; Fed Arb
Email:mfitzgerald@horizonslaw.com related and financial issues privately and
Panel of Commercial Neutrals; London
Website:horizonslaw.com without court involvement.
Court of International Arbitration North
Practice Area:Mediation or Special Service Area: Wisconsin
America Users Council; Certified

D E C E M B E R 2 01 6 W I S C O N S I N L A W J O U R N A L A LT E R N AT I V E D I S P U T E R E S O L U T O N 11
ADR PROFESSIONAL DIRECTORY LISTINGS
Mediator and Panel of Mediators, PETERS, DAN R. STERN, BENJAMIN
International Mediation Institute Ruder Ware LLSC von Briesen & Roper, s.c.
(The Hague), Panel of Arbitrators and 500 N. First St., Suite 8000 411 E. Wisconsin Ave., Suite 1000
Mediators, Chicago International Dispute P.O. Box 8050 Milwaukee, WI 53202
Resolution Association. Wausau, WI 54402-8050 Phone:414-287-1475
Phone:715-845-4336 Fax:414-238-6672
MATHIE, JAMES Fax:715-845-2718 Email:bstern@vonbriesen.com
Mathie Mediation Services LLC Email:dpeters@ruderware.com Website:vonbriesen.com
757 North Water Street, Suite 350 Website:ruderware.com Practice: Area Alternative
Milwaukee, WI 53202 Practice Area: litigation, mediation DisputeResolution,RealEstate
Phone: 414-585-0650 and arbitration Service Area: Wisconsin and Illinois
Fax: 855-427-6640 Service Area: Wisconsin
Email: jmathie@mathiemediation.com VOCKE, TIMOTHY L.
Website: mathiemediation.com Resolute Systems Inc.
Practice Areas: Mediation of all civil
PIKE, TIMOTHY
Peterson, Johnson, & Murray, S.C. 1661 N. Water St., Suite 501
and commercial matters. Milwaukee, WI 53202
1260A American Way
Service Area: Will travel statewide to Phone: 800-776-6060
Libertyville, IL 60048
mediate. Fax: 414-270-0932
Phone:(847) 996-1100
Email:tpike@pjmlaw.com Email:
MURPHY, JOHN B. Website:pjmlaw.com WeinzierlME@ResoluteSystems.com
Resolute Systems Inc. Practice Area: Personal injury, Website: ResoluteSystems.com
1661 N. Water St., Suite 501 mediation and arbitration, Practice Area: All Civil & Family
Milwaukee, WI 53202 insurance issues Service Area: Wisconsin
Phone: 800-776-6060 Service Area: Illinois & Wisconsin
Fax: 414-270-0932 WOLF, KEVIN E.
Email: Ruder Ware LLSC
WeinzierlME@ResoluteSystems.com
ROCK, HANNAH
Hansen & Hildebrand, S.C. 500 N. First St., Suite 8000
Website: ResoluteSystems.com P.O. Box 8050
126 N. Jefferson Street, Suite 401
Practice Area: All Civil & Family Wausau, WI 54402-8050
Milwaukee, WI 53202
Service Area: Wisconsin Phone:715-845-4336
Phone: 414-273-2422
Email: har@h-hlaw.com Fax:715-845-2718
MURRAY, JAMES Website: familymediationcenter.org Email:kwolf@ruderware.com
Peterson, Johnson & Murray, S.C. Practice Area: family law. Hannah Website:ruderware.com
788 N. Jefferson St., Suite 500 is a trained collaborative family law Practice Area: litigation, mediation and
Milwaukee, WI 53202 professional, certified Guardian ad Litem, arbitration
Phone:414-278-8800 and experienced mediator. Service Area: Wisconsin
Fax:414-278-0920 Service Area: Wisconsin
Email:jmurray@pjmlaw.com
Website:pjmlaw.com
Practice Area: Alternative Dispute
Resolution, Civil Litigation, product
liability, bad faith construction
Service Area: Wisconsin

12 W I S C O N S I N L A W J O U R N A L A LT E R N AT I V E D I S P U T E R E S O L U T O N D E C E M B E R 2 01 6
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Wisconsin Law Journal 225 East Michigan St. Milwaukee WI 53202 wislawjournal.com
Collaborative Financial Specialist
Divorce Proceeding
Estate and Succession Planning
Shareholder Transition / Dispute
Buying or Selling a Business
Litigation Support / Dispute Resolution

Scott J. Wildman, CPA/ABV, CVA

John M. Staehler, CPA, CVA
Paul D. Schoessow, CVA

262.797.0400 | www.vrakascpas.com