Seaquist v. Physicians Insurance Co. of Wisconsin

SUNDBY, J.

(dissenting). I conclude that the director of state courts' attempt to schedule a media*550tion session after expiration of the mediation period did not toll the statute of limitations.11 therefore dissent.

Section 655.465(1), Stats., provides in part:

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).

(Emphasis added.)

The director had no authority to order a mediation session which would be held after the mediation period expired. The mediation period may be extended only by written agreement of the parties.

The period for mediation expires either ninety days after the director receives a request for mediation or ninety-three days after the date of mailing the request to the director, "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)." Section 655.465(7), Stats, (emphasis added).

The key words in subsec. (7) are "specified by them in writing for purposes of applying ss. 655.44(4) and (5) and 655.445(3)." Section 655.44(4), STATS., tolls any applicable statute of limitations. Section 655.44(5) prohibits commencing a court action under that section until the mediation period expires. Section 655.445(3), *551Stats., prohibits pretrial and trial procedures under that section until the mediation period expires.

Thus, in any written agreement extending the mediation period, the parties must specify in writing the effect of their agreement, including tolling the statute of limitations. The statute is written to ensure that the parties are aware of the effect of agreeing to extend the mediation period. Because there was no written agreement in this case extending the mediation period, the running of the statute of limitations was not tolled. Plaintiffs action is thus time-barred.

The mandatory/directory cases, see, e.g., Eby v. Kozarek, 153 Wis. 2d 75, 450 N.W.2d 249 (1990), do not permit us to expand the director's authority to change the mediation period.

The administrator, acting for the director of state courts, scheduled a mediation session May 10, 1993, long after the mediation period expired. When challenged, the administrator had second thoughts as to his jurisdiction and cancelled the mediation session. This action was begun May 17,1993, nearly five months after the mediation period expired.