Mediation FAQs

Mediation provides an effective dispute resolution tool for people and organizations in conflict, particularly when communications have become ugly, unproductive, or completely shut down.  What is mediation?  And how could it apply for planning purposes or in the midst of an apparent impasse?  Here are answers to key questions about mediation.

What is mediation?

Mediation is a process facilitated by a mediator, through which parties to a dispute talk through what got them there, options for resolving the dispute, and underlying needs to be addressed.  Mediation provides an alternative to the win/lose dynamic present in court litigation or arbitration, by expanding the range of potential solutions.

For example, consider two neighbors who become frustrated with each other when one blares loud music outside in the daytime but the other sleeps during the day because he has a night job.  If their interactions have grown too acrimonious, a mediator may be able to help facilitate a resolution – such as to play music outside at times other than when the night job neighbor typically sleeps.  

Or maybe a nonprofit board member is upset about a key strategic decision the leadership must make, and she does not feel like anyone is listening to her.  Does she resign in disgust and harm the organization’s reputation by speaking poorly of leadership, or does she seek peaceful resolution of the issue through mediation?  A mediator may facilitate dialogue and help identify key issues to address, such as finances, strained relationships, restorative steps desired, and how the parties will move on from the conflict. 

Should We Incorporate?

Imagine you and a group of friends want to start a charity, church, club, or other nonprofit organization or are considering whether to restructure a currently operating organization.  An initial question you will need to answer is what form the organization will take.  The two most common forms of nonprofit organization are the corporation and the unincorporated association. Organization founders should understand each option in their decision of how best to structure the organization.  These days, most people choose the corporate structure, and for good reason.  Here’s why.

Advantages and Problems of Unincorporated Association Status

Some founders choose to establish an unincorporated association because they are easy to create and provide flexibility.  Most associations do not have to file any documents with a state regulator to be created or dissolved.  Associations may be created or dissolved by the simple agreement of their members.  The association does not have to adopt a governing document, although it should.  A governing document is helpful for organizational purposes and is required before obtaining tax exemption.

Flexibility and ease of creation, however, typically are outweighed by liability risks.  Unless a state statute specifically provides otherwise, unincorporated associations generally have no separate legal existence apart from their members.  Rather, an association is simply a group of people acting together for a common purpose.  Members of an unincorporated association can be held jointly and severally liable for each other’s acts that arise in the context of the association – i.e., personally, and each to the full extent of potential damages sustained by others.  No legal protections limit personal liability for acts performed by other officers, members, or other volunteers acting on behalf of the organization.  Likewise, no legal protections exist for other members when one member acts negligently in conducting association programs.  Indeed, many of the liability issues for unincorporated associations are the same legal deficiencies inherent in a traditional partnership, which gave rise to the development of the limited liability partnership and limited liability company corporate structures.

Politics Run Amok? Issue Advocacy and Democracy, Wisconsin Style

A long-standing criminal prosecution of “John Doe” targets finally ended with a massive court decision that harshly criticized both the blatant constitutional violations by government operatives and antics such as “paramilitary-style home invasions.”  The Wisconsin Supreme Court issued its decision in July 2015, providing potent reminders about the importance of free speech to our country’s democratic processes, how damaging government abuses can be, and the continued importance of educational “issue advocacy” carried out by nonprofits. 

Background – Search Warrants in Extremis

The underlying facts are complicated.  The controversy began in 2010, when the Milwaukee County District Attorney initiated a “John Doe” investigation into the financial conduct of staff and campaign supporters of Scott Walker, then the Milwaukee County Executive and now Wisconsin’s Governor.  John Doe probes are investigative legal proceedings to determine whether a crime has been committed and, if so, by whom.  This investigation triggered a second John Doe probe to root out allegedly illegal campaign “coordination” between Walker’s staff (during his 2012 gubernatorial recall election) and individuals involved with certain issue advocacy groups.  The term “issue advocacy” typically means educational efforts to raise public awareness about various public policy topics, usually carried out by nonprofit organizations.  Depending on the issues involved, such efforts may intersect with politics, such as environmental causes, pro-life, pro-choice, animal rights, and fiscal responsibility. 

A state judge later authorized the John Doe proceeding and granted a secrecy order covering the investigation.  By August 2013, court permission had been granted to commence John Doe proceedings and secrecy orders in five Wisconsin counties.  A special prosecutor was appointed to oversee the investigation.  By October 2013, 29 subpoenas had been issued, compelling the production of documents relating to coordination between issue advocacy groups and Scott Walker’s campaign committee.  Search warrants were issued for the homes of two individuals and then were executed in pre-dawn hours.