Q. Should I Mediate My Employment Law Case?

A commonly misunderstood aspect of litigation for people is alternative dispute resolution and mediation. In some cases, mediation is mandatory and court-ordered and in others it is merely optional and merely encouraged. In employment law cases, mediation is usually optional and at the discretion of the parties. What is Mediation? Mediation is a tool of alternative dispute resolution where an unbiased, impartial third-party official, called a mediator, attempts to help parties resolve a case to avoid the cost, time and expense of a hearing or trial. The goal of mediation is to get the parties to settle the matter and end litigation. Therefore, mediation is a tool used sometimes early on in a claim in order to see if the matter may be resolved quickly and amicable and also helps parties early on realize the strengths and weaknesses of their cases and defenses. The typical mediation takes place at the mediator's office where the parties to a lawsuit gather and every mediator proceeds in different manners and styles. Some mediators will have all the parties start out together in the same room and then separate the parties to meet and discuss with them separately and some mediators separate the parties the entire time and go back and forth in an attempt to get the parties to settle. Mediators pride themselves on their settlement success rate and the most successful mediators keep their appearance as unbiased and impartial to each party so as to not appear to be taking a side. In meeting with each party, the mediator goes over the case and usually is given a "mediation report" which is a brief description of the lawsuit and claim(s) before the mediation. This allows the mediator an opportunity to identify strengths and weaknesses in each party's claims and defenses to help the parties reach common ground to settle. Mediation can vary in time from mere minutes to an entire day, depending on the progress and how close the parties are to settlement. If settlement is reached, paperwork is filled out memorializing the agreement. If mediation fails, the matter proceeds along through the system, on pace to hearing or trial. ERD Mediation Program In Wisconsin, for claims before the Equal Rights Division (ERD), a mediation program was created where complainants and respondents may mediate their claims almost immediately after a claim is filed. The nice thing about the ERD's mediation program is that actual Administrative Law Judges who handle these cases on a weekly basis and see all types of claims are assigned as mediators (though they will not be the ALJ assigned if the matter proceeds to hearing). Allowing current ALJs to serve as mediators means that the foremost opinions and suggestions will be proffered and parties can really learn and see the strengths and weaknesses in their claims under the Wisconsin Fair Employment Act (WFEA) through mediation. Do I Need a Lawyer for Mediation No, you don't "need" a lawyer for mediation but it is highly recommended to obtain a lawyer as soon as possible as an employment attorney is in a good position to inform you of what a reasonable settlement offer is as it is often difficult to know what amount of money to take as a settlement. Many times I receive calls from individuals who have filed discrimination claims with the ERD and their expectation of what their case is worth and what they want to settle their case is incredibly unreasonable and above and beyond what the law provides for a remedy. This hinders a case and only leads to a hearing that could have been avoided very early on. Should I Opt for Mediation? This is not an easy "yes or no" answer as every case is different and really just depends on each party's mentality of the case and the facts of the case. Some parties are incredibly open-minded and easy to work with whereas other parties will be very stubborn and unwilling to budge on what they want to settle, assuming the other side will settle at all! This is another reason it is best to obtain an attorney before the mediation process as mediation can be a waste of time if you unknowingly go in with either unrealistic expectations or the other side is completely unwilling to settle and this could have been found out beforehand.

Q: I have some legal questions but do not want to invest any money into a lawyer at this point until I know it is something worth moving forward. Where can I get some basic information for free?

A: Although there are many lawyers in the area who will give free consultations, it is difficult to know where to begin. A lot of lawyers devote most of their practice to one area of the law. If a particular case does not fall into their practice area, they usually cannot be of much assistance. Sometimes a person needs to talk to a lawyer just to figure out what type of lawyer they might actually need. The Milwaukee Bar Association is offering free walk-in legal clinics from 1:00 pm to 4:00 p.m. on Saturday, May 5th in honor of National Law Day. The free walk-in legal clinics will be staffed by attorneys and no appointments are necessary. Arrive during the open hours and speak with an attorney at no cost. All areas of law can be addressed. Clinics will be held at the following locations: South Side: Bay View Library (Spanish speaking available) 2566 S. Kinnickinnic Ave. Downtown: Central Library 814 W. Wisconsin Ave. North Side: Center Street Library 2727 W. Fond du Lac Ave. West Side: Atkinson Library 1960 W. Atkinson Ave If the lawyers at the clinic cannot answer your question, they can at least get you started on being able to solve your problem. Questions? Please contact: Britt Wegner Director, Lawyer Referral and Information Service Milwaukee Bar Association Waukesha County Bar Association 414-276-5931 www.findmilwaukeelawyers.org www.waukeshalawyers.org

Q. Will an Attorney Take My Case on a Contingency Fee Arrangement?

A. A very common question I get--and understandably so--is whether I take cases on a contingency. That is, potential clients want to know whether attorneys are willing to work on cases and only get paid a certain percentage upon any potential recovery (usually 33.3%). This is ideal for potential clients as their out-of-pocket expenses to pursue lawsuits are minimal and forces an attorney to work hard to receive any pay for their efforts. The short answer to this commonly-asked question is: "it depends."



In employment law cases, it depends on a number of factors but mostly depends on the value and strength of the case. Unfortunately, not every case of discrimination is going to be worth a lot of money despite the egregious conduct of an employer. As discussed in a previous blog post, it may be harder to get attorneys to take employment law cases on a contingency fee arrangement at the state level before the Equal Rights Division as Governor Scott Walker is expected to sign legislation that repeals a prevailing party's right to punitive and compensatory damages under the Wisconsin Fair Employment Act (WFEA). So, for example, if a complainant files a discrimination claim and then "mitigates their damages" by either finding new employment that pays as much or more money or is reinstated by the employer with the exact same pay and working conditions, it could be that such a case before the ERD is not worth very much in damages (money) and an attorney may not be willing to work on a contingency fee arrangement in that situation. However, if a complainant was making a fairly good salary and out of work for, say, a year or more, that case may be extremely valuable and an attorney would be more likely to take such a case on a contingency fee arrangement but it would still depend on the strength of the case.



It is always best to call an attorney to run your case by them so they can attempt to assess the value of the case. Often times potential clients like to "Google" what other plaintiffs and complainants have won in their cases and that is not a good way to value your case as every case's facts are different and not worth the same. It is also not fair to get upset with attorneys if they are not willing to handle your case on a contingency fee arrangement. So, it is best to be patient and call around if you are not happy with the responses you receive but keep in mind that if 9/10 attorneys decline a contingency fee arrangement, that may be telling of your case.

Q. How do I stop the father of my children from sending me harassing text messages and voicemails?

A. In Wisconsin, “harassment” is defined as “engaging in a course of conduct or repeatedly committing acts which harass or intimidate another person and which serve no legitimate purpose.” If your children’s father is repeatedly sending you text messages and leaving you voicemails that have no legitimate purpose (such as name calling and threats), then you should first file for a temporary restraining order.
You can obtain the temporary order petition forms from the county clerk of court office at the courthouse and the cost is approximately $100 (which can be waived). After you file the paperwork, a court will conduct a temporary restraining order hearing where you may be asked about the harassment. If the court decides to issue a temporary restraining order, it will be for up to 7 days.
The court will set another date to determine if a more long-term restraining order or “injunction” is necessary. An injunction could be issued for up to 4 years. In order to determine whether an injunction should be granted, the court will allow both you and the father of the children the ability to testify at the hearing. It is important to bring information such as police or medical reports that back up your story. You may only be allowed to discuss incidents you outlined in the temporary restraining order petition, so be sure whenever you fill out forms to do so completely. At the end of the hearing the court official will tell you whether the restraining order is still in effect and for how long. You will be given a copy of the court's order. If the respondent is not at the hearing, the order will be served on him by law enforcement.

Q: Do I have to wait 120 days to get a divorce? Can my divorce be finalized sooner?

A: The law in Wisconsin requires that parties wait 120 days after they have filed for divorce before their divorce is granted. An individual who wishes to have his or her divorce finalized prior to waiting the mandatory 120 days would have to prove that he or she has an exceptional reason to have it finalized early. One exceptional reason could be that the individual is on active duty in the military and deploying out of the country soon. The Court would have to review the request and make a determination as to whether an exceptional reason exists to grant the divorce early.

Q: Is an employer required to pay unused vacation time upon resignation or termination?

A fairly common question people have when their employment concludes is what happens with their unused, accrued vacation time. The answer is: it depends.

In Wisconsin, like most every other state, the rule is that unused vacation time is to be paid out upon separation of employment UNLESS the employer's policy says it will not be paid out. For example, an employer may have a policy (usually stated in the employee handbook) that states unused vacation pay will not be paid out if an employee quits without giving proper 2-week notice or they may have a policy that doesn't pay accrued vacation time is the employee is terminated for cause.

If you believe you are owed vacation time at the end of your employment, first consult with the employee handbook, and if you still believe you are owed vacation time pay, you may consult with a local employment attorney who can assess whether a complaint with the Wisconsin Department of Workforce Development is appropriate.

Q. If you receive a citation for an automobile accident but you don’t believe it was your fault, should you contest the ticket?

A.If you are involved in an automobile accident and receive a citation, but you don’t believe the accident was your fault should you contest the ticket?

A. Ultimately, the decision is yours. Some questions to consider are: What are your chances of success if you do contest it? How much will it cost you? Will you lose your driving privileges? A lawyer can help you assess your situation.

If you decide to contest the citation, you are entitled to a trial. If the case is to be resolved in municipal court, a judge will decide the matter. If the case is to be resolved in circuit court, a judge also will resolve it, unless you immediately request a jury and pay the required fee.

If you decide that you do not want to contest the citation, and if someone else’s person or property was injured as a result of the accident, you should plead “no contest” rather than “guilty.” A no contest plea, unlike a guilty plea, can’t be used against you later in a lawsuit.