About three years ago, Michael Fitzpatrick retired as a Judge of the Wisconsin Court of Appeals after 15 years of service on the court. During that time, he also served as the Presiding Judge of the Wisconsin Court of Appeals. Prior to his appellate service, he served as a Circuit Judge, where he presided primarily over civil cases. He currently serves as a Reserve (part-time) Judge.
Judge Fitzpatrick is known for his impartial, thorough, and practical handling of cases. As both a Court of Appeals Judge and a Circuit Judge, he authored numerous highly regarded opinions that developed and clarified important areas of the law for civil practitioners and parties. We asked him how his expertise informs his approach on the American Arbitration Association® Judicial Panel.
Q. What motivated you to transition from the bench to arbitration and/or mediation work, and how did you become connected with the AAA?
As a Judge, I conducted hundreds of jury and court trials and presided over countless evidentiary hearings and summary judgment motions. With that background, I was motivated to work with AAA to assist parties and attorneys in the fair and efficient resolution of complex disputes through arbitration and mediation. I was motivated to work with AAA because of its well-earned reputation as a wonderful organization with excellent people whose goal is to help parties and attorneys resolve disputes equitably and quickly.
Q. What do you value most about serving as a neutral with the AAA?
I serve on the following AAA Panels: Large Complex; Judicial; Commercial; Employment; Construction; and Healthcare. I value AAA’s efficient and impartial rules and processes for the just resolution of disputes. I also value my work with the AAA Case Managers in that they always work toward the prompt conclusion of cases, balanced with the needs of the attorneys and parties.
Q. How has your experience as a judge shaped your approach to ADR proceedings?
My broad range of experience as a Judge presiding over complicated cases often involving millions of dollars allows me as an Arbitrator to be well-prepared and to preside in a practical and efficient manner to fairly and quickly resolve even the most complex motions and cases. I thoughtfully consider the positions of the parties in order to reach a concise, reasoned, and accessible arbitration decision. Parties and attorneys look for cost-efficient and prompt resolution of arbitrations. My significant experience in presiding over complex matters allows me to assist the parties in reaching those goals.
As a Mediator, my broad range of experience as a Judge allows me to assist the attorneys and parties in finding a resolution to their case. I have spoken with hundreds of jurors after they served in my courtroom, and I have been the finder of fact at hundreds of court trials. With that experience, I considerately and effectively communicate insights into how jurors and the judge will likely view issues if the case continues. With my background as an Appellate Court Judge, I also give practical perspectives into a party’s prospects on appeal. These insights are presented as a positive for the parties because my perspectives allow the parties to assess risks and likely outcomes in a clear – eyed and reasonable manner.
Q. How do you approach case management in arbitration or mediation, and what strategies do you use to keep the process fair, efficient, and focused?
How do you approach case management in arbitration or mediation, and what strategies do you use to keep the process fair, efficient, and focused? Prior to becoming a Judge, I was an experienced advocate who tried many lengthy, multi-party cases for businesses and individuals in state and federal courts throughout the country. I also served as national litigation counsel for several companies. With my more than 40 years of experience as a trial court judge, Court of Appeals Judge, and trial lawyer, I focus on a fair resolution of an arbitration consistent with the applicable rules but always understanding that reasonable flexibility is needed.
I have successfully mediated more than two hundred settlements in complex, large-dollar disputes. My approach to mediation is to work as a consensus-builder through patient methods with judicial insights contoured to the specific needs of each dispute. I listen carefully to the parties and their counsel and then assist the parties to open their perspectives toward a practical and solid settlement that avoids the risks and uncertainties inherent in litigation.
Q. What advice would you give to advocates or parties preparing for arbitration or mediation?
In arbitrations, I ask the attorneys to be prepared and efficient. I also ask the attorneys to remember that, while due process considerations are, of course, vital in arbitrations, the rules in arbitrations are meant to often be separate from rules in court so as to resolve disputes quicker than would occur in a courtroom.
In mediations, I understand that thorough preparation is vital and details are important. I am always prepared at the mediation to discuss legal and factual aspects of the case to assist counsel and the parties in crafting practical and equitable solutions. Every case has strengths and challenges, and I suggest that each party and their attorney factor the strengths and challenges of their case into the settlement negotiations.
Q. Which skills or qualities do you believe are most essential for a successful neutral, and how have you cultivated them?
I have thousands of hours of experience as an Arbitrator and presiding in a courtroom as a Judge. I have conducted multi-day, large complex arbitrations and written hundreds of appellate opinions. I bring that expertise and those skills to the arbitration process to resolve complex disputes fairly, efficiently, and thoroughly.
Patience with the mediation process is important, and I tenaciously but politely continue to focus the parties on settlement. Early on, parties often express views about settlement that appear irreconcilable. Parties frequently need time to process and absorb ideas and information introduced by me as the Mediator. The viewpoint of a party at the start of the mediation can be reasonably modified by the right Mediator such that a party has a different viewpoint later in the mediation.