The parties, including any guardian ad litem for their child, may agree to resolve any of the following issues through binding arbitration:
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:
The arbitrator's award sets forth detailed findings of fact.
The arbitrator certifies that all applicable statutory requirements have been satisfied.
Except for binding arbitration, all settlement alternatives are compromise negotiations for purposes of s. 904.08
and mediation for purposes of s. 904.085
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
Comment, 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.
Sup. Ct. Order No. 05-05
, 2008 WI 2
, 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."
Judicial 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.
Subsection (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.
Lawyers 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.
Subsection (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.
The 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.
When 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
This 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
Sub. (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
Wisconsin's New Court-Ordered ADR Law: Why It Is Needed and Its Potential for Success. Weinziel. 78 MLR 583.
Alternative Dispute Resolution in Wisconsin: A Court Referral System. Noonan & Bostetter. 78 MLR 609.
Alternative Dispute Resolution: Hanging Up the Gloves of Confrontation? Tenenbaum. Wis. Law. Aug. 1994.
The New ADR Referral Statute: Resolving Conflicts Outside Wisconsin Courtrooms. Soeka & Fullin. Wis. Law. Aug. 1994.
Think Like a Negotiator: Effectively Mediating Client Disputes. Frankel & Mitby. Wis. Law Dec. 2003.