Section 655.465. Mediation panels; mediation period.

 

(1)   Mediation panel for dispute. The director of state courts shall appoint the members of a mediation panel under sub. (2) and send notice to the claimant and all respondents by registered mail. The notice shall inform the claimant and all respondents of the names of the persons appointed to the mediation panel and the date, time and place of the mediation session. The director of state courts may change the date, time or place of the mediation session as necessary to accommodate the parties, subject to the requirement that the mediation session be held before the expiration of the mediation period under sub. (7) .

(2)   Appointment of mediators. Each mediation panel shall consist of the following members appointed by the director of state courts:

(a) One public member who is neither an attorney nor a health care provider and who is selected from a list of public member mediators prepared every 2 years, or more frequently upon request of the director of state courts, by the governor or, if any person resigns or is unable to serve as a public member mediator, from a list of alternates prepared by the director of state courts.

(b) One attorney who is licensed to practice law in this state.

(c) One health care provider as follows:

1. Except as provided in subds. 4. and 5. , if all respondents named in the request for mediation are physicians, a physician who is licensed to practice in this state and who is selected from a list prepared by a statewide organization of physicians designated by the director of state courts.

2. Except as provided in subds. 4. and 5. , if none of the respondents named in the request for mediation is a physician, a health care provider who is licensed to practice in this state in the same health care field as the respondent and who is selected from a list prepared by the department or the examining board or affiliated credentialing board that regulates health care providers in that health care field.

3. Except as provided in subds. 4. and 5. , if more than one respondent is named in the request for mediation at least one of whom is a physician and at least one of whom is not, a health care provider who is licensed to practice in this state and who is selected from the list under subd. 1. or 2. , as determined by the director of state courts.

4. If the director of state courts determines that a list under subd. 1. or 2. is inadequate to permit the selection of an appropriate health care provider, a health care provider who is licensed to practice in this state and who is selected from an additional list prepared by the director of state courts.

5. If the director of state courts determines that lists under subds. 1. or 2. and 4. are inadequate to permit the selection of an appropriate health care provider for a particular dispute, a health care provider who is licensed to practice in this state and who is selected by the director of state courts.

(3)   Filling vacancies. If a person appointed to a mediation panel under sub. (1) resigns from or is unable to serve on the mediation panel, the director of state courts shall appoint a replacement selected in the same manner as the predecessor appointee.

(4)   Conflict of interest. No person may serve on a mediation panel if the person has a professional or personal interest in the dispute.

(5)   Compensation. Each mediator shall be compensated $150 plus actual and necessary expenses for each day of mediation conducted. Compensation and expenses shall be paid out of the appropriation under s. 20.680 (2) (qm) upon such authorizations as the director of state courts may prescribe.

(6)   Immunity and presumption of good faith.

(a) A mediator is immune from civil liability for any good faith act or omission within the scope of the mediator's performance of his or her powers and duties under this subchapter.

(b) It is presumed that every act or omission under par. (a) is a good faith act or omission. This presumption may be overcome only by clear and convincing evidence.

(7)   Mediation period. The period for mediation shall expire 90 days after the director of state courts receives a request for mediation if delivered in person or within 93 days after the date of mailing of the request to the director of state courts if sent by registered mail, or within a longer period agreed to by the claimant and all respondents and specified by them in writing for purposes of applying ss. 655.44 (4) and (5) and 655.445 (3) .

1985 a. 340 ; 1989 a. 187 s. 28 ; 1989 a. 359 ; 1993 a. 107 . A claimant's failure to participate in mediation within the 90-day period under sub. (7) does not require dismissal. The court may determine an appropriate sanction. Schulz v. Nienhuis, 152 Wis. 2d 434 , 448 N.W.2d 655 (1989). If a party wishes to reschedule a mediation session for a time outside the 90-day statutory period, the party must obtain a written agreement to do so. If a respondent requests a rescheduling without providing a mutually agreed upon date within the 90 days and no written agreement is obtained, the mediation period does not terminate until the rescheduled mediation session is completed. Seaquist v. Physicians Ins, Co. 192 Wis. 2d 530 , 531 N.W.2d 437 (Ct. App. 1995). Completion of mediation within the period under sub. (7) is not a jurisdictional prerequisite for maintenance of a medical malpractice suit. Bertorello v. St. Joseph's Hospital of Marshfield, 685 F. Supp. 192 (W. D. Wis. 1988).