Midwest Law Talk is a podcast by Lommen Abdo attorney Joseph Wetch. It is a one-stop shop for all things law, covering a broad range of legal topics, including informative discussions about upcoming laws and relevant current events. Midwest Law Talk’s mission is to help you take your legal knowledge to the next level in a fun and informative way.
Fellow Lommen Abdo attorney Jamie Johnson was the most recent guest on the podcast, discussing all things mediation, including:
- What is Alternative Dispute Resolution (ADR)?
- What is mediation?
- How does the mediation process work?
- Does mediation need to be done in person, or are there other contact methods available?
- Are the involved parties required to settle their case in mediation?
- What are the typical costs of hiring a mediator?
- About Jamie: How long has he been a mediator? What does he enjoy most about it?
Find out Jamie’s answers to all of the above and more by listening to the podcast on Spotify here, or on Apple here.
You can also find a transcript of the podcast below:
Speaker 1: All rise.
Announcer: Hello and welcome to Midwest Law Talk, the podcast that brings you informative and useful topics, and conversation, about the law and now here’s your host, Joseph Wetch.
Joseph Wetch: Hello and welcome to Midwest Law Talk. I’m your host, Joseph Wetch, a Minneapolis lawyer practicing in the state and federal trial space. Today on the podcast is Lommen Abdo lawyer Jamie Johnson. Jamie’s here to talk about mediation, which is an alternative dispute resolution technique. Jamie, welcome to Midwest Law Talk.
Jamie Johnson: Thanks, Joe, for having me. I appreciate being here.
Joseph Wetch: So why don’t we tell the listeners a little bit about alternative dispute resolution. What does that mean?
Jamie Johnson: Sure. Alternative dispute resolution, or ADR for short, is basically… It describes various techniques in which you can resolve litigation. And, again, litigation is simply where one person sues another, could be over money or it could be to have a judge issue an order to force them to do something, but litigation, if not resolved by in an alternative means, usually results in a trial, it could be to a judge or a jury, and it can happen as much as three, four years down the road, so it can be a long, drawn-out process (litigation) and very expensive. And so alternative dispute resolution means anywhere along that process, could even be before litigation even starts, but it’s an alternative to having a jury trial, or a court, or a judge decide which side wins and which side loses.
With that ADR there’s different techniques like arbitration, mediation, even a hybrid of those two, mediation arbitration, but the one that I’ve practiced most in is mediation.
Joseph Wetch: And tell our listeners, Jamie, what exactly is mediation then as an… an alternative dispute resolution methodology?
Jamie Johnson: Mediation is where you have a neutral party is chosen and it could be a litigation with two or more parties, obviously, is what it comes down to but they all have to agree on the selection of the mediator. That neutral party then basically conducts a settlement conference, but before they do that they have to be brought up to speed. Often, they’re asked to review the pleadings. In any litigation there’s usually a petition or a complaint that makes allegations made by the person who’s bringing the lawsuit and then there’s an answer to that petition or complaint in which the defending party responds to those allegations and maybe has counter allegations, or also known as counterclaims.
So for the mediator to do his or her job they have to know what the parties are disputing, what are the subject matter, what are the claims that are being made and the allegations; and then each side will point to facts that have been drawn out usually in the discovery process for proving their point; and then 90% of the mediations that I’ve seen, or more, involve money and so it’s a matter of one party’s going to pay another party a sum of money; and the mediate part comes where the neutral, in confidence, talks to each of the parties and finds out what they are either willing to accept or what they are willing to pay in order to resolve the disputes, the claims, and dismiss the litigation. So it’s a settlement conference conducted by a neutral party.
Joseph Wetch: Is this something that’s required by courts or how does one go about that?
Jamie Johnson: Well, it depends where you’re at. Different states treat it differently and even… The state of Wisconsin where I had most of my practice – I’m licensed in both Wisconsin and Minnesota – but in Wisconsin it varies depending on which part of the state you’re in. For the part that I’m in – which is Western and Northern Wisconsin, Northwestern Wisconsin – it is usually baked into the process as a requirement. Now the mediation process itself can be required but the parties are not required to settle the case. You’re not being forced to accept a certain sum of money that you think is not enough and you’re not forced to pay an amount of money, if you’re the defendant, that you think is too much for the claims being made. So, you can’t be forced to settle but some courts – and most of them in Northwestern Wisconsin – will not let you have a trial date until you’ve been through the mediation process.
So, I’ve seen it in the 33 years I’ve been a lawyer, a private lawyer and I was a prosecutor before that, in that time I’ve seen mediation go to… Resolves now 99% of the litigation, so it’s a very popular way to resolve cases.
Joseph Wetch: And then tell me a little bit about how and when a mediation is done?
Jamie Johnson: Sure. Well for the mediation process, as I was explaining, first you have to select the mediator and there’s a whole… We could do a whole 20-minute interview just on that, but basically, I think the most important thing in selecting a mediator is finding somebody you’re comfortable with; but also finding somebody that the other side will be comfortable with.
For example, if you are the party that’s representing, say, an injured person in an intersection accident and this person was injured, and has a soft tissue injury and wants to make claims arising out of that, some of those attorneys you would think they might want a plaintiff’s lawyer, somebody who has the same background to be their neutral party, sort of a sympathetic ear; but there’s a strong school of thought the other way is that you don’t want a cheerleader as a mediator, you want somebody who’s going to fairly and neutrally evaluate the case, and can be objective. And so for that reason, if you really want to settle the case, you find somebody who’s a neutral that the other side is comfortable with. So, number one, select a mediator that you’re comfortable with.
Once the mediator is selected, the next thing is you have to schedule it, so you set a date. And I’ve been called in to mediate cases in as little as two or three days’ notice. Typically though it’s about two to three months out. You know attorneys sometimes have busy schedules, not to mention their clients, and then if you start getting into three- or four-party mediations it can take even longer to find an open date on a calendar. But once you have the mediator selected and the date on the calendar, then usually the mediator will ask for materials – that is background materials: the pleadings and an explanation of the case about three to five business days before. And so the mediator will read those materials, get up to speed, and be ready to ask questions, and then it’s a matter of conducting it.
And the mediation can be done three different ways. It can be in person, it can be via Zoom, or it can be even done via telephone. Now you’ve heard the expression somebody’s just phoning it in? That is because, in my experience, people who just have not much stake in the game, they’re not traveling, they’re not in somebody’s office there to try to get the case settled has a better chance of success in person as opposed to telephone; although because we are in a global society and we have people representing companies on the coast, Zoom and telephone, has become more common. And since COVID I’ve done a lot more mediations via Zoom.
So, the mode of mediation, assume it’s in person, then you talk about where. Well, you then have to decide do you want to have it in a neutral location? In my case we have three conference rooms, so we can do three and even more party because sometimes we have empty offices available for people to be in, where I’ve held five-party mediations before. It gets complicated but you use shuttle diplomacy; and the mediator literally goes back and forth between the parties, and finds out what their negotiating positions are, and exchanges demands and offers, and then works towards trying to get the case resolved. Once the case… You’ve got a tentative agreement verbally then you have to quickly type it, get it in writing and try to get everyone’s signatures before they leave, and so the goal of any mediation is at the end of it to have a signed mediation agreement that then the parties will then enforce, and it’s up to the parties to write a full-blown settlement agreement, stipulation for dismissal, and an order for dismissal ultimately for the judge to sign.
Announcer: You are listening to Midwest Law Talk with Joseph Wetch. He’ll be right back with more.
Joseph Wetch: So you’ve alluded to it but you really haven’t talked about your own mediation practice yet, so tell us about what you’re seeing in your mediation practice, and how long you’ve been a mediator, and what do you enjoy about it, things like that?
Jamie Johnson: Sure. Well as I indicated before I’ve been … I was hired by Lommen – actually it was Lommen Nelson then and now Lommen Abdo – back in March of 1990, so I just celebrated my 33rd anniversary with the firm. And when I first started my job was as a litigator. I was an associate. You know you always start out on smaller cases and so forth, and then I had jury trial experience because I was a prosecutor. I had 25 jury trials even before I came to Lommen Abdo and I began getting assigned cases. When you get assigned a case you consult with the client and you move the case, as an advocate, towards resolution. And in the early days I had a lot more jury trials. My first six, seven, eight years – even 10 years in practice – but then about 25 years ago (20 to 25 years ago) mediation started popping up in different locations and then it became to the point where now courts require it before you’re even given a trial date.
So, I’ve probably mediated, as an advocate, representing one of the parties involved in the case, I would say two to three average a month over 20 to 25 years, so somewhere between 600 and 750 cases that I’ve mediated. And I can say that in that 20 to 25 years probably have resolved them all in mediation, or shortly after mediation, with an exception of maybe two to three per set, so a high success rate in getting them resolved.
And then it was about 10 years ago somebody said, “Well, Jamie, you’ve been doing this almost 25 years, we see how successful you are in getting cases… You know what it takes to get a case settled, you should be doing this yourself.” So I actually got a call from an attorney who was my opponent in many cases and he had a case with a particular insurance company client who I had previously represented in other cases, and he said, “Jamie, I want to use you because I know that the other side’s going to listen to you. You’ve been giving them legal advice for almost a quarter century. If you think the case ought to settle in a certain range they’re likely to listen to you.” And, as it turned out, so they agreed to meet, they waived any potential conflict and I went ahead, mediated the case.
We didn’t get it done in the three, three and a half hours we were mediating, but from what I learned it ended up settling in that $25,000…within $25,000 range of where I thought the plaintiff should accept an amount, if it were to be offered. We weren’t quite there yet – you always want to try to achieve that overlap – but in that case, it ended up getting resolved like a week or two after the mediation.
So, once I did that successfully, word started spreading and so now I do personal injury matters, I’ve done – we call them bad-house cases, but they’re construction defect, usually a dispute between a contractor and a homeowner. I’ve done real estate disputes where someone says, “You misrepresented the house. The house has basement water problems and you didn’t disclose those,” so then we get people get sued, the realtor can get sued, the buyer, the seller, and anyone who attempted to do repairs might get sued, so you bring in different parties. So, I’ve had multi-party disputes that we’ve resolved. And I even took on a family law case, even though I’ve never litigated – I’m not a family lawyer, not a divorce lawyer – but it was a couple who needed somebody with more litigation skills and complex litigation. It actually took two times to mediate that case but I was able to get it done. So, I’ve had a wide variety of commercial and insurance litigation matters, consumer disputes, that I’ve been able to get resolved for a fraction of the cost that it would have been to litigate it completely.
Joseph Wetch: What does it cost to hire a mediator, typically, in your practice areas and how is that apportioned between the parties, if at all?
Jamie Johnson: Well, that’s a great question. I have seen mediators charge, in the last – I’ll just use the last five years because any data longer than that is going to be affected by inflation – but in the last five years I’ve seen mediators charge as little as $200 an hour and I’ve seen them charge as much as $900 an hour. So, my particular rate, currently (this is March of 2023) is $350 an hour. It would be split by the parties, and so if we have two parties, they would each be paying about $175 an hour, and you can just do the math depending on how many parties are involved. You get that agreed upon up front. Occasionally there’s a tertiary party, or a tangential party, who doesn’t have a direct stake in this but they may have a small $1,000 or $2,000 interest that has to get resolved, sometimes they’re not sharing in that cost, but I have seen… I have mediated cases, and successfully settled them, in as little as an hour, hour and ten minutes, and I’ve had others that take all day.
So I find that it really does help by charging by the hour rather than by the size of the case because I’ve had million dollar cases settle in a couple hours and I’ve seen cases settle for 25,000 bucks after eight hours of haggling, so the complexity or size of the case doesn’t necessarily dictate the length but it all depends on the personalities involved; so you have to have a mediator who can relate to people and who understands the issues, asks the right questions because if you don’t have that rapport, that connection if you will, with the parties they’re not going to trust you. If you’re not trusted the case is not going to get resolved. It just isn’t.
And so, what you have to be able to do is read people; have the experience in the subject matters of the various dispute, the various claims in the dispute; and I think it’s a huge advantage anyone who the longer they’ve been in practice, I think, the better qualified they are to mediate a dispute because just by sheer experience they’ve been down the road, they’ve had some experience. Even if it’s not identical to the problem at hand, they’ve had something very similar, and they can draw on those experiences and empathize with the parties. In my case I have represented defendants, people who have been sued, but I have also represented people who have brought claims, people who have been injured caused by other people’s negligent conduct, so I can usually relate to parties in that way and try to comment, and be the person in the room.
Sometimes they don’t like always to hear what I have to say but they need to hear what I have to say because if all they get is an advocate cheerleading their case, they could be led down a path and have unrealistic expectations when they get to the courtroom. And I’ve seen some people that get very, very disappointed with the outcome if they haven’t had that ability to go through mediation.
Joseph Wetch: So as a mediator in Western Wisconsin and Minnesota do you have to have any special credentials or certifications from the state?
Jamie Johnson: Not in Wisconsin. Minnesota has moved to what’s called a qualified neutral and I have received the training for…that went into that. I think it was a 35-hour course in order to get that training, but in Wisconsin it’s not required. You don’t have to have any kind of special license or credentials. The thing that I bring to the table is success. I’ve had well over 90% of the cases I mediate do get resolved and so that’s why I’m… That’s what I’m trying to do.
Joseph Wetch: Jamie, as we wrap up here any last thoughts about your mediation practice and mediation in general?
Jamie Johnson: Well, I think we’ve touched upon selection of a mediator, getting somebody that you’re comfortable with and that’s knowledgeable in the area, and what I don’t see is many times mediators will require the parties to travel to them and I can offer a neutral court, if you will. Like I said, we have multiple conference rooms, but I am also willing to travel. If for other reasons, sometimes people have injuries or disabilities that prevent them from driving any long distance or any length of distance, I can travel to the parties and I’m willing to do that. We’re right on the interstate, so I want to meet the client’s needs and I’m here to resolve cases. So if people want to get ahold of me they can email me at JamesJ, that’s J-A-M-E-S-J, JamesJ@Lommen, L-O-M-M-E-N. That’s Larry, Oscar, Mary, Mary, Edward, Nancy.com. JamesJ@Lommen.com, or you can simply call me and I have a direct line, 715-381-7105. Again, that’s 715-381-7105, and if I’m available I answer my own phone.
Joseph Wetch: Well thanks for listening to this episode of Midwest Law Talk and thank you, Jamie, for coming on and explaining this whole process to us. So, if you haven’t already, subscribe. Please subscribe and review this episode of Midwest Law Talk on your favorite player platform, and we’ll be transitioning now since I have moved to Lommen Abdo from my previous law firm, so the podcast will be coming up a little bit more frequently now than they have been in the past several months. So please stay tuned for more episodes in the future. Until next time.
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