Maine Association of Mediators News

Videoconference Mediation Practice Guide by Rebekah Smith and Peter Schroeter

Fri, 10 Jul 2020 01:34:52 GMT

As we continue to follow directives to practice social distancing, videoconferencing has become the new normal for conducting meditations. Fortunately, video and audio participation through remote videoconference platforms is widely available for parties to use to resolve their cases in mediation and is a good alternative when in-person mediation is not possible or practical. We have found the Zoom platform the most useful for meditations, but several others are available.

The reaction of many attorneys who have experienced meditations using Zoom is “surprise” at how well it works and how effective it can be in resolving cases. While the program does a good job of replicating in-person meditations by offering joint sessions, breakout rooms, and the ability to create binding settlement documents, there are necessarily differences driven by the technology of the process. By helping counsel and parties understand how remote video mediation works, including what will happen from scheduling through conclusion, mediators can help ensure that the mediation will go smoothly and increase the chances of successful resolution.

Here is a step-by-step Practice Guide that we use to help participants – counsel and parties - prepare for their videoconference meditations:

Getting Started

You can participate fully in the mediation with a desktop, laptop, tablet, or smartphone (if you are using a smart phone you will need to download the Zoom Cloud Meetings app.).
It is important that your device be fully charged and/or that you have charging accessories available so that nobody’s device runs out of power during the mediation.
You will need a strong, secure (not a public network)internet connection.
You should have your cell phone available as a backup up means of communication.
The service center on Zoom’s website has a variety of helpful videos and instructions, including participating in a practice Zoom meeting.

Scheduling/Joining the Mediation

You will receive an email invitation to the Zoom mediation for the date and time agreed upon.
Click on the Zoom meeting link 5-10 minutes before the mediation is scheduled to start.
Click on “Open Zoom” in the prompt that will appear on your screen. You do not have to have a Zoom account to do this or to participate in the mediation.
You should join the meeting with your video and audio on.
You will be admitted into a separate Waiting Room. You may wait a few minutes in your waiting room until everybody has arrived before you are brought into the mediation. You will not be able to see other participants, but the Mediator will be able to see that you are in the Waiting Room.
The Mediator will admit you into the Main Session Room along with the others to begin the mediation.
There is a taskbar at the bottom of the screen that shows the functions that the participants can use. The Zoom screen can be reduced or minimized for easy access to email and documents on the participants’ computers.
Participants can change the way that the participants appear on the screen by choosing Speaker View, which enlarges the video screen of the person speaking, or Gallery View, which gives a “Brady Bunch” appearance to participants’ video screens.
If a participant leaves the mediation due to a connection or power issue or by mistake, they can return to the mediation by going back to their email invitation and clicking the Zoom meeting link. They will enter the waiting room where the Mediator can see them and bring them back into the mediation.
The Mediator should have the participants’ cell phone numbers for backup and troubleshooting communications.
The Recording Feature should be turned off by the Mediator so that the mediation cannot be recorded through Zoom. In addition, all participants agree not to video or audio record the mediation by any other means.

Joint Session

The mediation starts with a Joint Session where the Mediator explains the mediation process and the functions of Zoom that will be used.
Each party will then have an opportunity to make an opening presentation in the joint session.
There is a screen sharing function the parties can use to show documents and photographs for their opening presentations.

Breakout Rooms for Private Sessions

After the joint session, the Mediator will separate the parties and their attorneys into what are called Breakout Rooms. The participants will only be able to see and hear those in their breakout room and will not have video or audio access to the participants in the other breakout room.
The Mediator will meet separately and privately with each party and their lawyer in their respective breakout rooms, going back and forth from one breakout room to the other, to discuss the case and guide the negotiation to attempt to reach a settlement.
The parties can use the screensharing function to review documents and photographs with the Mediator privately and confidentially in their breakout room.
As needed, the Mediator can leave a breakout room so the parties can confer with their attorneys privately. The parties can signal the Mediator to return to the breakout room when they are ready.
Extra breakout rooms can be created by the Mediator for conferences between the Mediator and the attorneys or other combination of the participants.

Settlement

If the parties reach a settlement, the Mediator will help the parties prepare, review. and revise settlement documents.
Together, the parties can decide with the Mediator the best method of obtaining signatures. Common methods for obtaining signatures include DocuSign; electronic signatures; and email, print and scan.

Pros, Cons, and Practical Considerations

With the uncertainties created by the Covid-19 pandemic and the likely increases in the length of time parties in litigation are facing in moving cases forward, videoconference mediations provide an important alternative to resolving cases while the constraints of social distancing preclude mediations from otherwise happening. Understanding how the process works and being able to educate clients on what to expect will be critical to making the experience of “the new normal” mediation satisfactory and successful. We have had the opportunity to practice in various neutral affinity groups over the past two months to gain an in-depth understanding of Zoom features and their usefulness in mediations. We strongly encourage attorneys to do practice Zoom sessions with clients to ensure their comfort and understanding of the platform so that parties can focus on the substantive issues during the mediation without undue anxiety about how the mediation will work.

There are many positive aspects to conducting mediation via remote video. Remote mediations can be more easily and quickly scheduled since travel is not a factor. For the same reason, costs, and time, particularly for out-of-state participants, can be significantly reduced. In addition to replicating many of the features of in-person mediations, Zoom’s screen sharing function, with its ability to allow all participants to share, control and mark documents, can facilitate and improve the showing of exhibits and working on documents by all participants together or in smaller groups, such as the attorneys working on settlement documents. Probably most importantly, holding mediations via videoconference allows parties to move forward conflicts that are otherwise unable to proceed in other settings due to backlogs and closed courthouses.

Downsides to videoconference mediation include the difficulty in reading body language and facial clues of participants. Mediators will not have the same control over the physical environment as they do with in-person mediations, which can create confidentiality and appearance issues. Attorneys with client control/expectation problems may find it more difficult to have effective client communications, with or without the mediator, than they would if they were in the same room. Furthermore, technology issues are to be expected and can slow down the process and distract from the work at hand. Finally, remote mediations certainly take more time to prepare for, although the time in mediation itself seems about the same as it would be otherwise.

The setting and technology involved create additional practical considerations for mediators to be aware of when conducting remote video mediations. Discussion by video is more tiring than in person conversation and makes it difficult to obtain real eye contact or allow for natural breaks in conversation. This may make it difficult for parties to generate empathy and may cause frustration because the conversation is not as satisfying as an in-person mediation. Frozen screens and delayed audio can make conversation challenging. Some tips to avoid those downsides are to speak slowly and avoid taking over others. You can also talk in shorter bursts, giving more opportunity for interaction to make sure communication lines are working. The mediator may take more breaks than in person, to allow participants to give their eyes a rest and catch their breath. A mediator is not able to level the playing field in terms of the technological capabilities of all parties. It is important for the mediator to take into account the imbalances of power that may be exacerbated by use of the video platform and the need for parties to participate in home settings rather than a curated neutral setting. Showing empathy for interruptions and difficulties parties may have in focusing are essential skills for the mediator doing remote mediation.

All things considered, remote video mediations provide a viable and useful tool for parties to resolve disputes during the current state of emergency.

Peter Schroeter is a Mediator and Arbitrator with the firm of Shaheen & Gordon. He is a member of the National Academy of Distinguished Neutrals and recognized by Best Lawyers in America and New England Super Lawyers in Mediation. He is the Chairperson of the Maine State Bar Association Alternative Dispute Resolution Section and Past President of the Maine Association of Mediators.

Rebekah Smith, Principal at Seven Tree Solutions, provides mediation, arbitration, and independent investigation services, operating exclusively as a neutral for over 15 years serving private parties as well as government and administrative agencies. She is a Past President and current Vice President of the Maine Association of Mediators and a Board Member of the Labor and Employment Relations Association-Maine. She is a rostered neutral with a variety of organizations including AAA, the Maine Labor Relations Board, the Maine Human Rights Commission, and the Maine Department of Education.

Distanced but not Distant: Connecting through Online Mediation by Gregory S. Clayton, Esq.

Wed, 27 May 2020 18:13:49 GMT

In a blink of an eye the world of mediation changed. First, the hand-shaking stopped. Then, people weren’t sitting close to each other in joint sessions. Finally, and wisely, we stopped holding in-person mediations altogether.

Mediators who prized their ability to interact personally with people were now doing crash courses in Zoom and trying to figure out how to work with new technology. We wondered how a craft founded on understanding, empathy and connection could survive if we were peering at people through computer screens.

We are not all the way there, but I can report this: Mediations are going forward, cases are resolving and everyone is trying hard to make this work.

Images stay with me:

The mother who did the entire mediation sitting in her car, the one quiet place she could find away from her kids and pets.
A couple involved in a horrific accident tearing up as they told their story, their emotions as plain on the screen as in person.
Over a dozen participants on a complex case, joining in on one screen and then working almost nine hours in breakout rooms to resolve a case that might not have been heard by the court system for years.

There will be many more images in the months ahead.

I see other positive changes. Mediators who once saw each other as friendly competitors are collaborating, sharing experiences and tips, and helping each other move forward. During private discussions in breakout rooms, counsel and parties are talking openly about the new normal and life in isolation. We are connecting.

The transition to online mediation is not perfect. I still miss the personal touch. But in times when personal touch might just be deadly, we have to, and will, make this work.

Originally published, April 03, 2020, on Greg's blog, Thoughts on Mediation

About the Blogger:

Gregory S. Clayton is a full-time mediator based in Camden, who mediates throughout Maine, New Hampshire and Vermont. He is a member of the National Academy of Distinguished Neutrals and a Fellow of the American College of Trial Lawyers.

He may be contacted by email or at (207) 706 4977. CLAYTON MEDIATION, LLC

TIPS FOR ONLINE MEDIATIONS USING ZOOM by Gregory S. Clayton, Esq.

Wed, 27 May 2020 18:03:37 GMT

Mediator Tip #1: Set Up and Utilize Your Waiting Room Effectively

Personalize your Waiting Room. The Waiting Room in Zoom has a default message which is not particularly personal or welcoming. If you explore the Settings tab, you can change the Waiting Room message and upload a logo or photo. For many mediation participants, your Waiting Room is their first contact with you. Incorporate a personal message that confirms they are in the right place and that you will be checking in with them shortly.

Use the Waiting Room as a Default to Keep your Mediations Secure. By now, everyone has heard about Zoom Bombing and uninvited guests appearing in public Zoom meetings and causing difficulties. With your Waiting Room enabled by default, no one can enter the meeting unless you admit them. This becomes the mediator’s bomb-proof method to screen admission, one participant at a time.

Use the Waiting Room to Check Connections and Rename Participants. Before the mediation begins, I like to admit people from the Waiting Room individually or in small groups (such as the Plaintiff and his or her counsel). By admitting participants selectively, you can check ahead of time to make sure that internet signal strength is appropriate, and both video and audio are functioning correctly.

You can also use this time to rename participants with their full names, using the “. . .” tab at the top right of each participant’s photo. This will help you and the other mediation participants identify each other when the Main Session starts. It will also help you assign the right people to the right Breakout Rooms.

After Connections and Names are All Set, Return Participants to the Waiting Room. If you have confirmed that admitted participants are properly connected and named, you can again use the “. . .” tab at the top right of each photo to return a participant to the Waiting Room, explaining that you need to check in on other participants. You can then repeat this process for the remaining participants, while avoiding putting adversaries into the Main Session together.

Use Waiting Room Time to Populate Breakout Rooms. As soon as a participant enters the Waiting Room, you have the option to assign them to a pre-designated Breakout Room. I like to set up my Breakout Rooms well before participants join in. As they enter the Waiting Room, I start assigning them to the correct Breakout Room. Do not open the Breakout Rooms at this juncture. If you continue to populate the Breakout Rooms as each participant signs in, you will be ready to proceed smoothly to opening the Breakout Rooms when the Main Session is over.

Admit Everyone Back from the Waiting Room when you are Ready to Start the Main Session. Once everyone has joined the meeting, you have checked connections, fixed any names and populated (but not opened) the Breakout Rooms, you can hit “Admit All” to bring everyone into the Main Session and begin the mediation.

For more articles on Mediation, check out Greg's blog, Thoughts on Mediation

Originally published, April 24, 2020, on LinkedIn.

About the Blogger:

He may be contacted by email or at (207) 706 4977. CLAYTON MEDIATION, LLC

TIPS FOR ONLINE MEDIATIONS USING ZOOM by Gregory S. Clayton, Esq.

Wed, 27 May 2020 17:36:55 GMT

Mediator Tip #2: Make Breakout Rooms Work Better

Private Breakout Rooms are the most important feature Zoom offers for conducting caucused mediations. Here are a few suggestions on how to make Breakout Rooms work smoothly and more effectively.

Set Up and Name Breakout Rooms before the Mediation Starts. I like to sign in a half-hour or so before the start of the mediation to make sure everything is working. This is also a great time to manually set up Breakout Rooms and rename them before the Main Session starts, so you are ready to go.

Consider using the first names of counsel and parties when you rename the rooms, to help get the right people into the right rooms. For instance, with a three-party case, you might use this format:

Plaintiff: Thomas, Suzanne & George
Defendant 1: Carrie & Beth
Defendant 2: Ian, William & Candace

Add Extra Breakout Rooms. Once you have initial rooms for the participants, consider setting up extra Breakout Rooms. In a multi-defendant case, consider an “All Defendants” room. Also, a “Counsel” room, and a “Mediator” room. There is no harm in having extra rooms. Once you open the Breakout Rooms you can’t easily add more rooms, so setting these up ahead of time is helpful.

Don’t Log Out of the Meeting Once Breakout Rooms are Set Up. If you log out of the meeting as Host, all the work you have done to name and set up Breakout Rooms is going to disappear and you will have to start over. So, stay in the meeting once your Breakout Rooms are set up.

Populate Breakout Rooms as Participants Join the Waiting Room. You can’t assign participants to individual Breakout Rooms until they actually enter the Waiting Room. When you receive notifications that individual participants have joined, start populating the Breakout Rooms so you are all set when you open them up.

Don’t Open the Breakout Rooms Until You Finish the Main Session. Although you have set up and named the Breakout Rooms, don’t make the mistake of opening them prematurely. If this happens you can lose people from the Main Session and have trouble getting them back. Open the Breakout Rooms as your final step when you conclude the Main Session (reminding participants that they will receive and need to accept an invitation to join their Breakout Room).

Explain Breakout Room Privacy to Participants. Counsel and parties unfamiliar with Zoom often are unsure about the privacy of Breakout Room conversations. I like to explain that you can see the only people who can hear you, and if you can’t see someone’s picture (or phone number for audio participants), they are not inside the room. Also explain that if the Share Screen feature is used inside a Breakout Room, the “share” stays privately inside that room.

Utilize the “Ask for Help” Button. Often Breakout Room participants will ask the Mediator to leave the room so they can discuss their next move privately. The question then arises how to alert the Mediator when to come back into the room. One of the buttons that appears when parties are in a Breakout Room is “Ask for Help”, which sends a private message requesting that the Host come back. If participants are educated ahead of time on the location of this button and what it does, Breakout Room visits become much easier.

Instead of Leaving Breakout Rooms and Returning to the Main Session, Move from Room to Room Directly. There are two ways for the Host to leave a Breakout Room: (a) by using the “Leave Room” button (which returns you to the Main Session); or (b) by opening the Breakout Room window and clicking “Join” to join a different Breakout Room without passing through the Main Session first. The latter, of course, saves time and works more efficiently if you are finished in one room and wish to go directly to another.

Consider the Option of Moving Participants to a Different Breakout Room. There are times in some mediations where you may choose to move participants into other Breakout Rooms than where they started off. For instance,

In a multi-defendant case, the defendants may wish to confer as a group on strategy or allocation of offers.
If there is an important legal point that needs to be communicated, there may be situations where there is benefit in bringing counsel into the opposing party’s room to explain their perspective.
If a mediation is getting bogged down or encountering unexpected issues, there may be situations where the mediator wishes to speak privately with all counsel, without the parties present.
Or, if a case resolves, it may be productive for counsel to work together in a separate Breakout Room, without clients present, to craft settlement terms.

If you open the Breakout Room window and click on a participant’ name, you will see an option to “Assign” that person to another room.

At the End of the Mediation, Offer to Keep the Breakout Rooms Open for Private Discussions. When a mediation wraps up, counsel often welcome a chance to speak privately with their clients about next steps going forward. Offer all sides the option to stay in their Breakout Room for those discussions as long as they wish. As Host, you can keep track of who remains and who has left. Don’t close out the meeting until everyone has finished those discussions.

For more articles on Mediation, check out Greg's blog, Thoughts on Mediation

Originally published, May 8, 2020, on LinkedIn.

About the Blogger:

He may be contacted by email or at (207) 706 4977. CLAYTON MEDIATION, LLC

Are you Prepared for Your Personal Injury Mediation? -- Plaintiff’s Case by Gregory S. Clayton, Esq.

Mon, 15 Jul 2019 00:06:31 GMT

Abraham Lincoln once said that if he were given six hours to cut down a tree, he would spend four hours sharpening his axe. This may seem a bit anachronistic in the digital era but the essential point rings true; especially whenit comes to mediation of personal injury cases.

Many attorneys see a day spent in mediation as not particularly heavy lifting: drafting a mediation statement and scribbling a few ideas on a legal pad. A day in mediation is a lot easier than taking an expert’s deposition and far, far easier than time in trial.

Comfort zones, however, can instill complacency. If we view mediation of a personal injury case as the client’s day in court, is there any room for casual lawyering? Let’s focus on how plaintiff’s counsel can prepare to make a personal injury mediation both meaningful for clients and successful.

Eliminate surprises. While “Perry Mason moments” may have a place in the courtroom, they don’t help you in dealing with insurance adjusters who roundtable, value, and reserve cases weeks before the mediation. Update your medical specials well in advance, share tax returns and lost income information, and ask if the adjuster and defense counsel have everything they need to assess the case. If the case is grossly under-reserved, you are not going work miracles at mediation and the case is unlikely to resolve. Proper reserving is as much a function of advance work by plaintiff’s counsel as proper evaluation by the carrier.

Get liens under control. Contact the lienholders to try to negotiate liens well ahead of the mediation. Let them know of the date and time of the mediation and get phone numbers where they can be reached during the mediation if lien issues become important. If you are dealing with CMS (Centers for Medicare and Medicaid Services), get a conditional payment letter ahead of time. If you have a large workers comp lien, invite the carrier to attend the mediation with counsel.

Make a demand well before the mediation. This goes back to the concept of surprise elimination. Don’t walk into the mediation without a prior written demand on the table. Demands assist the reserving process. They also ensure that the claims person who shows up at the mediation is someone with appropriate settlement authority.

Prepare a negotiation game plan. The best negotiators prepare hard. Instead of just coming up with a “bottom line,” it may be useful to work up three settlement ranges: (1) the “home run” settlement that would exceed expectations; (2) the good settlement that makes everyone reasonably happy; and (3) the difficult settlement that will be a challenge but possibly could work. It also may help to anticipate starting offers and responses, and to identify information that can be provided to the mediator to help in the other room. If there are key documents that refute anticipated defense arguments, prepare extra copies to provide to the mediator. Come to the mediation armed with a breakdown prepared of litigation costs to date and expected litigation costs through trial, so you can counsel your client on the true economic value of a settlement today versus taking the case through trial.

Meet your client in advance. Most personal injury clients are unfamiliar with mediation and come into the process, at best, nervous and uncertain; and at worst, terrified. Sitting down with clients to explain the process in person a few days before the mediation is time well-spent:

√ Walk through the nature of mediation and how a typical personal injury negotiation may go.

√ Talk about the role of opposing counsel and the role of the mediator.

√ Cover the confidentiality of the process and the need to stay off social media.

√ Discuss issues that may come up in the mediation and potential settlement ranges.

√ Decide together if your client will have a speaking role in a joint session and what might be said.

√ Provide the client with a copy of mediation submissions by opposing counsel and go over these.

Bring along a structured settlement advisor. If this is a large value case where a structured settlement might have a role, consider inviting your own structured settlement advisor to the mediation. There are capable people in this field who will attend mediations without charge and assist your client in understanding ways to invest a settlement to provide tax-free income, protection, and growth. While structures are not suited to every case, they can play an important part in a significant case.

Plan something to say. Hopefully, you have shared a detailed written mediation summary with both the mediator and opposing counsel in advance of the mediation. This should be an advocacy piece that fully and fairly presents your case. Your written submission, however, does not take the place of oral advocacy. If there is going to be a joint session, use this as a chance to highlight “big picture” issues or to directly address issues that you know will be important to the defense. The most effective counsel do not use the opening statement for chest pounding and threats, but instead focus on being persuasive to their target audience: the adjuster. Credibility is just as important in mediation as in trial, so concede points you can’t win, but offer compelling reasons why the case creates risk for the defense side. Visuals or handouts can be effective in this process, if judiciously employed.

Mediations count. They are an opportunity to give defense counsel and the adjuster a chance to see what they may face at trial. They are a chance to present your case in person rather than on paper. They are also a vitally important day for clients, who have a day to participate and decide whether to resolve their case or take it to trial. Taking the time to properly sharpen your axe can make a real difference in what could be the most important day in your client’s case.

This article first appeared in the Maine Lawyers Review – June 27, 2019.

About the Blogger:

He may be contacted by email or at (207) 706 4977. Website

Mediation over litigation by Rebekah Smith and Peter Schroeter

Tue, 07 May 2019 19:42:12 GMT

If you want to revive civility, choose mediation over litigation by Rebekah Smith and Peter Schroeter

The authors, both attorneys, encourage municipal officials to consider advantages of a mediator-led approach. One, they write, stands out: It saves a lot of money.

The following article was printed in the April 2019 issue of the magazine of the Maine Municipal Association - Maine Town & City

ME Municipal Assn Article.pdf

Mediation Practice Tips by Rebekah Smith, Esq., posted June 14, 2018

Thu, 14 Jun 2018 05:27:15 GMT

In serving as a neutral for over a decade, I offer these practice tips to help advocates pave the way to a successful mediation.

Contact in Advance

In some cases, the mediator may contact the parties in advance to determine who will be attending and also get the general thoughts of each party as to the posture of the case and the tenor of the relationship between the parties. Even if not, it is helpful to let the mediator know who will be attending the mediation with you. This assists the mediator in preparing the environment and ensuring that both parties are not surprised when they walk into the mediation.

In addition, a written position statement from each party is often helpful to both the parties and the mediator. These pre-mediation efforts can foster fruitful discussions and give the mediation a higher likelihood of success.

Thoughtful Opening

Be prepared to give a thoughtful opening. Keep your presentation focused on the salient facts and essential legal claims, and if possible, provide an olive branch to the other party. For example, respondent in an employment case can share that complainant was a valued employee in some regard. A statement to that effect may be helpful to opening the dialog.

It is usually best to avoid demands and responses in the opening statements, since they are often better handled during caucuses and conveyed by the mediator. It is also helpful to acknowledge in the opening that your client is participating in mediation in a good faith effort to find a resolution that works for both parties.

The mediator will likely emphasize that compromise will benefit both parties and express an understanding of the parties’ desire to avoid costs and energy involved in litigation. The mediator may also underscore the other benefits of a mediated agreement, including a quick and global resolution of the dispute and the fact that the parties retain control of the outcome through mediation. Emphasizing these benefits of mediation with your client can help build a bridge towards a resolution of the case.

Also, be prepared to present a very limited opening if the mediator so recommends. Sometimes, one party is not capable of being in the room for long with the other party or may become easily inflamed by statements in the other party’s opening. Maintaining flexibility is key to a successful mediation.

Discovery and Preparation

A plea: do not use the mediation for discovery. Come prepared to settle the case, if at all possible. Do the preparation and get the authorization necessary to make that possible.

Explore with your client all avenues of relief that might be palatable. In the employment context, this could include a positive reference, employee training, or alterations to a personnel file. Sometimes the focus on the financial component of a settlement overshadows those non-monetary aspects of settlement that might be particularly beneficial to some clients.

Try not to inflame your client – or the opposition – during the mediation. Work with the mediator to keep the parties calm and capable of fully participating in the mediation with clear heads. Occasionally an attorney will engage in litigation tactics that can create more of a barrier than a bridge to resolution.

Your Mediator is Neutral

Understand that the mediator may ask questions that seem challenging but are intended to help the parties thoroughly evaluate the strengths and weaknesses of their own, and the other side’s, case. It does not mean the mediator is drawing conclusions about who is right and who is wrong – the mediator knows well there are two sides to every story. But it does mean that the mediator is working hard to get you and your client to confront the realities of the other side’s position.

Mediators have different methods of practice regarding how evaluative to be. It is helpful to be clear when you want the mediator to be more evaluative to help your client move forward. The mediator is in a sense conducting his or her own negotiations with each party and advocates can assist by providing guidance, even if subtle, as to what their clients need to hear to fully evaluate various options for resolution.

Attorney’s Fees

Finally, be clear with your client, and the mediator if possible, as to how your fees will factor into any settlement under discussion. It is most helpful to mediators to understand from the initial demand or response the role that attorney fees will play. Sometimes, it may be necessary to review your fee and see if it is possible to reduce it in order to get a final resolution of a matter during a mediation.

Mediation is an extremely useful tool to help parties fashion an outcome to a problem that is likely stressful, costly, and time-consuming. Helping the mediator help your clients resolve such problems is a valuable service.

Rebekah Smith is the principal attorney at Seven Tree Solutions. She served at both the Maine Supreme Judicial Court and the U.S. Court of Appeals for the First Circuit as a judicial clerk before conducting a two-year Skadden Fellowship representing clients in the legislature and through impact litigation. Since 2005, Smith has maintained a practice as a mediator, arbitrator, independent outside investigator, and administrative law judge, presiding over hundreds of cases as a neutral.

This article is reprinted from the June 7, 2018 ADR Issue of Maine Lawyers Review.

FICTION AND MEDIATION by Phil Moss, posted May 04, 2018

Fri, 04 May 2018 14:25:40 GMT

For several years, I acted in community theater, and then I took up writing fiction. In my experience, there is a common thread that runs through those activities, and mediation. The mediator, as we all know, endeavors to see things through the eyes of others; an actor strives to inhabit the character he or she portrays; and the writer must do a little of both.

At the root of these efforts to see things through another’s eyes, is empathy. Merriam-Webster defines “empathy” as:

the action of understanding, being aware of, being sensitive to, and vicariously experiencing the feelings, thoughts, and experience of another of either the past or present without having the feelings, thoughts, and experience fully communicated in an objectively explicit manner; also : the capacity for this.

Psychology Today states that:

Empathy is the experience of understanding another person's thoughts, feelings, and condition from their point of view, rather than from your own. You try to imagine yourself in their place in order to understand what they are feeling or experiencing.

Wikipedia adds:

Types of empathy include cognitive empathy, emotional empathy, and somatic empathy. . . . By the age of two years, children normally begin to display the fundamental behaviors of empathy by having an emotional response that corresponds with another person's emotional state. Even earlier, at one year of age, infants have some rudiments of empathy, . . .

I can recall several specific occasions when I had an empathetic epiphany. One of those occurred when I was a newly minted attorney. I had torn my meniscus and my ACL, and was reduced to a hobble on the way from the subway to my office, and nobody in the crowds of people that flowed past and around me on the streets of Boston would make eye contact with me. I had become invisible, and I realized that my disability made others uncomfortable - and that I had been guilty of the same thing, when I encountered someone with an obvious disability.

Another occasion occurred a year before I attended law school. I was on a subway car in Tokyo, and everyone - men, women, children - was staring at me, because I was the only white person on the car, the only non-Japanese. I need not point out the significance of that experience.

I make no claim that these experiences made me a better person: perhaps they did. But the fact that they remain vivid in my memory after so many years shows that they did teach me something.

"The NPR broadcast of On Point on May 1st featured the following two guests:

Dr. David Rakel, professor and chair of the Department of Family and Community Medicine at the University of New Mexico, founder and former director of the University of Wisconsin Integrative medicine program, and author of The Compassionate Connection: The Healing Power of Empathy and Mindful Listening; and Dr. Helen Riess, co-founder and chief scientist for Empathetics, psychiatrist and medical educator at Massachusetts General Hospital and Harvard Medical School, and author of The Empathy Effect: 7 Neuroscience-Based Keys for Transforming the Way We Live, Love, Work, and Connect Across Differences."

About the blogger:

Phil Moss is a member of the State of Maine’s Panel of Mediators, and has been active in alternative dispute resolution since he first entered the legal profession. In 1975, Phil was one of fifty attorneys who volunteered to participate in the pilot mediation program for the Boston Municipal Court, and in subsequent years he volunteered as a participant in pilot mediation projects for the Maine Human Rights Commission and the Maine Superior Court system. As an advocate he participated in well over 100 arbitrations and mediations, involving the hospitality industry, trucking and warehousing, supermarkets and public utilities (including nuclear power), among others. For a number of years prior to his retirement from the active practice of law, Phil was included in New England Super Lawyers, and listed in Chambers USA, America’s Leading Business Lawyers and in The Best Lawyers in America. Phil has worked pro bono publico for a number of organizations, including the Jewish Community Center of Portland, ME, the Pine Tree Council of the Boy Scouts of America and the Maine chapter of NAMI (National Alliance on Mental Illness).

Mediation of Real Estate Contract Disputes in Maine by Peter W. Schroeter, Esq., posted March 26, 2018

Mon, 26 Mar 2018 17:13:00 GMT

Residential real estate purchase and sale agreements (PSAs) contain numerous terms that might give rise to disputes between buyers and sellers. There are terms involving the payment and forfeiture of earnest money deposits if the transaction fails. There are conditions involving building and property inspections that can result in additional negotiations with the potential for dispute. There are financing conditions with detailed date and document requirements that can lead to disagreement as to whether financing has been or should have been obtained. Property disclosure forms can generate disputes over nondisclosure of defects or misrepresentation of required items in the property.

To help address these disputes in a more efficient and less costly and adversarial way than pursuing litigation, the Maine Association of REALTORS®’ standard form residential purchase and sale agreement contains a paragraph requiring mediation of any dispute between buyers and sellers arising out of performance of the contract before litigation can be initiated. The mediation requirement provision of the PSA states:

“17. MEDIATION: Earnest money or other disputes within the jurisdictional limits of small claims court will be handled in that forum. All other disputes or claims arising out of or relating to this Agreement or the property addressed in this Agreement (other than request for injunctive relief) shall be submitted to mediation in accordance with generally accepted mediation practices. Buyer and Seller are bound to mediate in good faith and to each pay half of the mediation fees. If a party fails to submit a dispute or claim to mediation prior to initiating litigation (other than request for injunctive relief), then that party will be liable for the other party’s legal fees in any subsequent litigation regarding the same matter in which the party who failed to first submit the dispute or claim to mediation loses in that subsequent litigation. This clause shall survive the closing of the transaction.”

For any party involved in a dispute under the terms of their PSA it is important to understand certain requirements and limitations of the mediation provision. Disputes involving earnest money deposits or other disputes of less than the small claims jurisdictional amount, now $6,000, are not subject to the mediation requirement. Those disputes can be brought to Small Claims Court for binding decision by that Court.

Only the buyers and sellers who signed the contract are required to participate in mediation. The real estate agents involved can, and sometimes do, attend the mediation in support or witness roles for their clients, but their participation is voluntary, and they are not required to be involved in the monetary settlement negotiations.

The mediation provision of the PSA also provides for sanctions if either party fails to participate in the mediation. Once a mediation request has been made, a party who fails to submit a dispute to mediation prior to initiating litigation will be liable for the other party’s attorney’s fees in the litigation if the other party prevails. Since attorney’s fees for each party going to court can be substantial, the penalty for not going to mediation can be severe and significantly more than the amount in controversy.

In addition to substantial cost and time savings, mediation has other advantages over litigation. Unlike court proceedings, which are public, the mediation process is confidential, and any settlement reached can be kept confidential as part of the settlement agreement. Further, the parties to the mediation control the elements of the settlement - the mediator does not impose a decision on the parties if a settlement agreement is not reached. The mediator, a professional neutral, facilitates the settlement negotiation by helping the parties understand the strengths and weaknesses of their positions along with the uncertainties, risks, and costs of going to court as compared to reaching a negotiated settlement agreement.

When there is a dispute under a PSA, the first step is for the parties to select a mediator. If the parties have attorneys involved (not required), their recommendations can be helpful in selecting a mediator with experience and expertise in real estate matters. The Maine Association of Mediators is a valuable source of information about mediators. Although the Association no longer maintains a formal real estate mediation program, its website contains a list of mediators who were on its real estate mediation roster in the past under the Real Estate tab.

The Association also provides biographical profiles of all mediators who are members of the organization, approximately 75, and the ability to conduct a search of those mediators by both area of practice, such as real estate, and geographic location. Once a mediator has been selected, the mediator determines a mutually convenient date and location for the mediation and schedules it accordingly, usually within 30 to 60 days of the initiation of the mediation request, and directs the mediation process to its conclusion. Fees for mediation are set in advance by the mediator and agreed upon by the parties.

About the blogger:

Peter Schroeter is a Mediator with the firm of Shaheen & Gordon. He is a member of the National Academy of Distinguished Neutrals, rated AV by Martindale-Hubbell and recognized by Best Lawyers in America and New England Super Lawyers in Mediation. He is Chair of the Maine State Bar Association ADR Section and a Past President of the Maine Association of Mediators.

How to Get Rid of 80% of Your Unhappiness In Relationships by Meredith Richardson, posted March 08. 2018

Thu, 08 Mar 2018 18:48:29 GMT

APPLYING THE 80/20 RULE TO RELATIONSHIPS

Have you heard of the 80/20 Rule? The theory is that 80% of consequences are a direct result of 20% of causes.

Have you ever applied it to your relationships?

When you think of your friends and family members, which 20% create 80% of your desired outcomes and happiness?

These are your peeps. These are the people with whom you want to spend your time and, if it’s a healthy relationship, these are the people with whom you should spend your time.

Take a moment after you’ve finished reading this and make time to get together with them.

Now, think of your friends and family members again. Which 20% create 80% of your problems and unhappiness?

Here is the harder question. Why are you sacrificing so much of your happiness to them?

Here are some of the answers I have heard:

“She’s my mother.”
“It’s not his fault.”
“I have nowhere else to go.”
“I’m married. I made a commitment.”
“My (adult) son needs me.”
“I’m a rescuer at heart.”
“I’m Superman.”
“Who will take care of her if I don’t?”
“I’m too old to change now.”
“I couldn’t live with myself if I weren’t there for him.”
“He’s my brother.”
“I can’t afford to leave.”

Here are things that people often think but don’t say:

“I’m afraid no one else will love me.”
“I don’t think I deserve to be treated any better than this.”
“I’m so ashamed that it has gotten to this point.”
“I need to be needed.”
“I don’t know how to have a relationship where my needs are met, too.” “I’m afraid of what will happen if I stick up for myself.”
“I’m afraid of change.”

Here is the part that can be too scary to even think:

“I don’t know how to put my needs first (in this instance or maybe in life).”

Here’s the reality:

First, let’s talk about the extent of problems and unhappiness you suffer as a result of the person. Not all unhappiness is equal.

When you have contact with this person, how do you feel on a scale of 1 – 10, with 1 being minor irritation and 10 being high level anxiety or anger, often resulting in a need to medicate yourself with food, alcohol, cigarettes, or other substances?

How often do you currently have contact with this person? How often do you really need to have contact with this person? Could you decrease your time with this person?

Is the person causing you unhappiness because the person is emotionally, physically, or sexually abusive to you? Has anyone told you the person has been abusive toward you, even if you would not describe the person as abusive?

Can you take a step back from the person to better evaluate the relationship? Often, we don’t even know the reactions our bodies are having until we step away from the relationship.

There is a difference between someone creating 80% of your unhappiness intentionally versus unintentionally. There is also a difference between someone creating 80% of your problems on a temporary basis versus on a permanent basis.

For example, if a loved one has cancer, you are likely to feel a great deal of unhappiness as a result. You may be worried, angry that this person is suffering, sad, anxious, and more. If you are married and there are medical bills piling up as a result, you may also feel anxious, worried, distressed, angry, and more. Still, it is perfectly healthy to be there for the person as much as possible, to love the person and to also feel great pain. You may experience caregiver fatigue and look to find ways to support yourself emotionally as a result. You may experience caregiver fatigue and decide that you cannot do anymore.

In the alternative, if you love someone who rejects you, puts you down, always has to ensure that his/her needs are met (and yours are not), then it could be time to take stock of the relationship. You know that it is not working for you – that is why you have listed it in with the relationships causing 80% of your unhappiness.

Can the relationship be fixed? Is the person willing to work on the relationship to meet your needs, too? Is the person willing and able to talk with you, to meet in counseling or mediation to discuss it and put together a plan to get things back on track?

If it can’t be fixed, and you still want to maintain the relationship, then can it be contained? Can you limit the amount of time that you spend with the person, spend less hours together, have a buffer present, opt for telephone contact, email, text, or Facebook instead of in person contact?

If it can’t be fixed, you know it’s not healthy, and it’s causing you a great deal of distress, it’s time to really look at why you are investing so much of your time in this person. We have a finite amount of time on this earth. Think of what you could do with all of that time that you currently spend unhappy. Why is it more important to be there for that person than to be there for yourself?

About the blogger:

Meredith Richardson, Esq., CPC, is a conflict management specialist. She works as a Mediator, Dynamic Facilitator, Trainer, and Conflict Coach in Maine, New Hampshire, and New Orleans, LA. Meredith began working in conflict as an attorney, a litigator. In that role, Meredith found that the people who came to her often were quite skilled at fighting, but seemed to have lost the ability to get along. She wanted to help them to navigate conflict successfully. Mediation, Dynamic Facilitation, conflict coaching, and training all allow her to do that.

This article first appeared February 22, 2018 on MEREDITHmediates.com.

SNOW V. BERNSTEIN SHUR, et al. by Phil Moss, posted February 11, 2018

Sun, 11 Feb 2018 20:49:48 GMT

In May 2012, Susan Snow retained the Portland, ME law firm of Bernstein Shur to represent her in a civil action, and she signed an engagement letter which, inter alia, required her to submit fee disputes , “and any other dispute that arises out of or relates to this agreement or the services provided by the law firm,” to binding arbitration. The provision did not mention malpractice claims specifically and Bernstein did not explain to Snow that the language meant that she would be waiving her right to sue the firm in court for malpractice. When Snow did sue for malpractice, Bernstein moved to compel arbitration. The Superior Court rejected Bernstein’s motion, Bernstein appealed, and the Law Court denied the appeal, on grounds of public policy. The Court’s reasoning was that an attorney owes a fiduciary duty to his or her client, and therefore cannot require the client to waive a legal right without fully informing the client of the significance and consequences of such a waiver. To put it simply, if Bernstein wanted the agreement to be enforceable, it should have given Ms. Snow the same explanation that she would have gotten if she had sought an independent opinion of the language from a reputable attorney at a different firm.

The opinion also rejected Bernstein’s argument based on the Federal Arbitration Act [see the Supreme Court’s opinion involving this issue, in Kindred Nursing Centers, 581 U.S. ___, 2017].

Snow v. Bernstein Shur, et al (Jabar, J), 2017 ME 239, Cum-17-054, 12-21-2017

About the blogger:

WHEN TALK IS CHEAP by Phil Moss, posted January 29, 2018

Mon, 29 Jan 2018 20:24:37 GMT

Years ago, someone gave me a mug that said, on one side, “talk is cheap, and on the other side, “until you hire a lawyer.” According to a posting on the Internet, it was P.T. Barnum who first coined this phrase, a variation on a much older saying, “Talk is cheap, but whiskey costs money.” The original intent of that phrase was to belittle mere braggadocio, and to remind us that actions speak louder than words.

The utterances of President Trump are a reminder that even when we don’t value our own words, they may have a cost.

“Credibility” is defined as “the quality of being trusted and believed in,” and the word itself dates back to the 1590’s, from Medieval Latin “credibilitas.” However, the concept is so fundamental to human society that it must have existed long before that particular term was coined. Even as children, we learn not to trust someone who goes back on his word.*

According to Wikipedia, “Credibility has two key components: trustworthiness and expertise, which both have objective and subjective components. Trustworthiness is based more on subjective factors, but can include objective measurements such as established reliability. Expertise can be similarly subjectively perceived, but also includes relatively objective characteristics of the source or message (e.g., credentials, certification or information quality).”

Lawyers, mediators and arbitrators (and sometimes even politicians) know how important credibility is. The parties to labor negotiations know how important it is. The fact is that credibility plays an important role in our lives almost daily. We believe/trust that the credit card company will honor our transactions, and keep our personal data safe; we believe/trust that the bus, the train, the uber driver, will arrive on time. And occasionally we are disappointed: our credit card is wrongly rejected, or our personal data is hacked, the bus is delayed. And when individuals or businesses or governments lose credibility, when we stop trusting them, the consequences can be severe.

The importance of credibility in our daily lives is reflected in the many ways that it finds expression in colloquialisms. “Talk is cheap,” is one; “say what you mean and mean what you say” is another;** to “walk the talk” is another way of saying the same thing. When you repeatedly say things that are manifestly untrue, when you repeatedly contradict what you said before, when you repeatedly scorn and mock others because of their race, gender, religion or physical attributes, you pay for that kind of talk with the coin of your personal credibility. And when you are the President of the United States, you are also paying with the nation’s credibility. It is fair to say that one year into his presidency, no one on Capitol Hill trusts the President to keep his word, and none of the other countries in the world trust the United States. That is a heavy price to pay for cheap talk.

*The Popeye cartoons enjoyed by a generation of children featured the character J. Wellington Wimpy who was famous for his mendacity in telling others, “I’ll gladly pay you Tuesday for a hamburger today.”

**This phrase appears to have originated in a passage from Alice In Wonderland, by Lewis Carroll: “Then you should say what you mean, "the March Hare went on. "I do," Alice hastily replied; "at least--at least I mean what I say . . .”

About the blogger:

KINDRED NURSING CENTERS LIMITED PARTNERSHIP, DBA WINCHESTER CENTRE FOR HEALTH AND REHABILITATION, NKA FOUNTAIN CIRCLE HEALTH AND REHABILITATION, ET AL. V. CLARK ET AL., posted November 15, 2017

Wed, 15 Nov 2017 21:31:33 GMT

Beverly Wellner and Janis Clark - the wife and daughter, respectively, of Joe Wellner and Olive Clark - each held a power of attorney affording her broad authority to manage her relative’s affairs. When Joe and Olive moved into a nursing home operated by Kindred Nursing Centers, Beverly and Janis used their powers of attorney to complete all necessary paperwork. As part of that process, each signed an arbitration agreementon her relative’s behalf providing that any claims arising from their stay at the facility would be resolved through binding arbitration. After Joe and Olive died, their estates (represented by Beverly and Janis) filed suits alleging that Kindred’s substandard care had caused their deaths. Kindred moved to dismiss the lawsuits, on the grounds that they were barred by the arbitration agreements. The trial court denied Kindred’s motions, the Kentucky Court of Appeals agreed, and the Kentucky Supreme Court consolidated the cases and affirmed. The court initially found that the language of the Wellner power of attorney did not permit Beverly to enter into an arbitration agreement on Joe’s behalf, but that the Clark document gave Janis the capacity to do so on behalf of Olive. Nonetheless, the court held, both arbitration agreements were invalid because neither power of attorney specifically entitled the representative to enter into an arbitration agreement. Because the Kentucky Constitution declares the rights of access to the courts and trial by jury to be “sacred” and “inviolate,” the court ruled that an agent could deprive her principal of such rights only if expressly provided in the power of attorney. The U.S. Supreme Court reversed.

The Federal Arbitration Act, the Court held, makes arbitration agreements “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract,” 9 U. S. C. §2. A court may invalidate an arbitration agreement based on “generally applicable contract defenses,” but not on legal rules that “apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue,” AT&T Mobility LLC v. Concepcion, 563 U. S. 333, 339. The Act thus preempts any state rule that discriminates on its face against arbitration or that covertly accomplishes the same objective by disfavoring contracts that have the defining features of arbitration agreements. The Kentucky Supreme Court’s clearstatement rule failed to put arbitration agreements on an equal plane with other contracts, and by requiring an explicit statement before an agent can relinquish her principal’s right to go to court and receive a jury trial, the court did exactly what the FAA prohibited: adopt a legal rule hinging on the primary characteristic of an arbitration agreement.

The Court remanded for consideration by the Kentucky Supreme Court of the validity of the Wellner document, independent of its application of the flawed rule.

581 U. S. ____ (2017), Thomas, J., dissenting; Gorsuch, J., took no part in the consideration or decision of the case.

About the blogger:

ROCKWELL V. 3CROW, LLC AND JOSHUA HIXSON, ET AL. by Phil Moss, posted October13, 2017

Fri, 13 Oct 2017 20:19:29 GMT

The parties to this litigation agreed to submit all of their claims, counterclaims and cross-claims to mediation before Attorney Jerrol Crouter on June 10, 2016. In the mediation, the parties agreed to a settlement which required them to “exchange mutual releases of all claims that exist as of the date of the release.” The settlement term sheet provided that “any disputes as to the language of this Term Sheet or the final settlement documents will be submitted to arbitration” with Attorney Crouter. There was a significant delay in the execution of the releases, and in the interim a leaky dishwasher in the restaurant operated by 3Crow and Hixson caused damage to the property that they leased from Rockwell, and 3Crow terminated its lease before the agreedupon termination date of February 28, 2017. An arbitration hearing was held before Attorney Crouter on December 8, 2016. The essential disagreement between the parties was whether the effective date of the releases should be the date of the mediation or the date the releases were signed [by the date of the hearing no releases had been signed]. In a pair of decisions issued on December 19 and 28, 2016, Attorney Crouter ruled that all of the parties’ claims were released with the exception of three (3) claims that he specifically identified, which arose after the date of the successful mediation. Rockwell then brought suit in Superior Court to vacate the awards.

Plaintiff Rockwell’s argument was that the arbitrator was limited to two choices: (1) the releases should be effective as of the date of the mediation or (2) the releases should be effective as of the date they were signed. Rockwell argued that the arbitrator exceeded his authority by “carving out” claims that arose subsequent to the date of the mediation, from the releases. The Court rejected this argument. Neither side had challenged Crouter’s authority to arbitrate the dispute, the language of the settlement set forth in the Term Sheet gave the arbitrator broad authority to resolve “any disputes,” and the arbitrator’s decision to carve out claims arising after the date of the mediation was not arbitrary or capricious.

Rockwell v. 3Crow, LLC and Joshua Hixson, et al., Business and Consumer Court, BCD-CV-15-62; BCD-CV-16-026 (Murphy, J. May 22, 2017).

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XPRESS NATURAL GAS, LLC, et al. v. WOODLAND PULP, LLC by Phil Moss, posted September 02, 2017

Sun, 03 Sep 2017 03:55:47 GMT

In a per curiam opinion that issued on May 30, 2017, the Maine Supreme Judicial Court affirmed a judgment of the Superior Court denying an application to vacate arbitration awards and confirming those same awards.

In 2011, the Woodland Pulp Mill in Baileyville, Maine, constructed a 4.5 mile natural gas pipeline connecting the mill to the interstate Maritimes & Northeast Pipeline, which runs from Nova Scotia to Massachusetts. In 2013, Xpress Natural Gas entered into a contract with Woodland to lease space on its property for a CNG/LNG facility and to lease capacity on Woodland’s pipeline to supply gas to its facility. Subsequently, a dispute arose when Woodland claimed that Xpress was “nominating” (ordering) more gas than it was using - in effect, using the pipeline to store gas when the price was low that it could later sell at a higher price. Although the parties’ contract was silent on this issue, Woodland claimed that the contract included an implied term incorporating a standard industry practice that required Xpress to “balance” its nominations with its usage. The contact contained an arbitration clause that defined a “Dispute” as “any dispute, claim or controversy arises out of this Agreement, including the performance, breach, validity, interpretation, application or termination thereof . . . which the Parties are not able to settle or resolve . . .” and went on to provide that:

Any Dispute that is not [mutually] resolved . . . shall be finally resolved by binding arbitration in accordance with the then current expedited commercial arbitration rules of the American Arbitration Association . . . and judgment on the award may be entered in any court having jurisdiction thereof.

The parties selected an Arbitrator,* and hearings were held before him on October 13 and 14, 2015. In a decision dated November 25, 2015, the Arbitrator concluded that “The failure to include a specific provision in the [contract] addressing the issue of potential imbalances created a significant ambiguity as to the parameters of Xpress' rights and obligations” and agreed with Woodland that the parties’ contract contained an implied term requiring Xpress to balance its nominations with its usage, in accordance with standard industry practice. The Arbitrator gave the parties 30 days (later extended) to negotiate such a provision but when negotiations failed the Arbitrator held another hearing, on February 19, 2016, and issued a supplemental decision which defined the terms of the “balancing” provision.

In denying Xpress’ appeal from the Superior Court and confirming the Arbitrator’s awards, the SEC began by recapitulating the applicable legal standard [note: all legal citations have been omitted from the following text]:

The standard for showing that an arbitrator exceeded his powers is “an extremely narrow one” in large part because the parties have bargained for the arbitrator’s construction of the contract at issue . . . We generally resolve any doubts in favor of the arbitrator’s authority and will uphold the arbitration award — even if it contains errors of law or fact — “if any rational construction of the agreement could support [the arbitrator’s] interpretation.” Id. (quotation marks omitted); . . . (“If this [arbitration] award can in any rational way be derived from the agreement, viewed in the light of its language, its context and any other indicia of the parties’ intention, it will be upheld.” (emphasis added)).

Contrary to Xpress’s contention on appeal, the arbitrator did not exceed his authority pursuant to 14 M.R.S. § 5938(1)(C). Considering that the parties themselves could not determine Xpress’s rights pursuant to the agreement, the arbitrator found that the agreement was ambiguous, examined the intent of the parties in entering the agreement, and implied a balancing obligation to remedy the ambiguity. . . . (“A contractual provision is considered ambiguous if it is reasonably possible to give that provision at least two different meanings.” (alteration omitted) (quotation marks omitted)).

In issuing the supplemental award, the arbitrator did expand upon Xpress’s implied obligation to “reasonably balance” its nominations and consumption of natural gas by adding terms including remedies for any future imbalances . . . The arbitrator did so, however, only after finding that the parties had understood in entering the agreement that Xpress would “adjust its use [of the pipeline] to accommodate Woodland’s [balancing obligations],” that the balancing terms proposed by Woodland were appropriate “for the foreseeable future” but could be revisited if Xpress’s business grew, and that the remedies for future imbalances proposed by Woodland were “appropriate and consistent with reasonable industry standards . . .” Given these findings, the arbitration awards did not “directly contradict the language of the agreement . . .”

____________

*Attorney Peter DeTroy, who died of cardiac arrest on May 28, 2016. The lead attorney for Woodland was William S. Harwood of Verrill & Dana; the lead attorneys for Xpress were Peter Brown of Preti Flaherty & Belliveau (who handled the arbitration) and Tim Norton of Kelly Remmel & Zimmerman (who handled the appeal).

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CONDOMINIUM MEDIATION: DISCUSSING RESOLUTION BEFORE LITIGATION by Peter Schroeter, Esq., posted August 28, 2017

Tue, 29 Aug 2017 03:29:10 GMT

There are unique aspects about condominium disputes that make consideration of early intervention mediation a good idea. Unlike most types of litigation, condominium disputes often put neighbors who share common property interests and see each other daily in an adversarial position. Assessments for legal expenses cause resentment among association members and often exacerbate an already emotionally charged situation. Prolonged litigation can divide the community and adversely impact the value of all owners’ units.

Because these disputes often involve a relatively modest amount of fines, property damage or unpaid dues, at least initially, the attorney’s fees andexpenses of litigation can often be out of proportion to the amount in controversy. Once the onset of litigation and the passage of time cause attorney’s fees and fines for violations to increase, disputes become increasingly difficult to resolve. Despite the ability to collect fines and attorney’s fees if associations prevail in litigation, Courts frequently reduce the amount of those claims, leaving associations with attorney’s fees significantly in excess of what is awarded by the Court, not to mention the collection difficulties from unit owners that subsequently follow.

Mediation early on in condominium disputes gives the parties an opportunity to explore resolution before legal expenses become "the tail that wags the dog" and before the heightened emotions and polarization that occur when a lawsuit is filed. Engaging in mediation procedures that create an environment where conversations are about resolution instead of litigation promotes community harmony, which is in the best interests of all unit owners. Provided the concept is properly presented and fairly administered, mediation at an early stage of the condominium dispute can be used with or without attorney involvement. Chances for resolving disputes are often improved just by affording the unit owner the opportunity to have his or her side heard by a neutral person. The cost and scheduling of mediation can usually be tailored to the nature of the dispute and the needs of the parties.

About the Blogger:

Peter Schroeter, Esq. is a Mediator with the firm of Shaheen & Gordon. He is a member of the National Academy of Distinguished Neutrals, rated AV by Martindale-Hubbell and recognized by Best Lawyers in America in mediation.

MAKOWSKI V. MAINE STANDARDS CO., LLC by Phil Moss, posted on August 02, 2017

Thu, 03 Aug 2017 03:15:27 GMT

Plaintiff Thomas Makowski was employed by Maine Standards as a sales manager, starting in 2011, and one of the terms of his employment was that he could telecommute one day a week from his home in New Hampshire. After Maine Standards was acquired by an English company, he signed an employment agreement which contained the following language:

All claims between the Company and Manager with respect to this agreement shall be resolved by binding arbitration . . . administered under the rules and regulations of the American Arbitration Association with the Federal Rules of Evidence applicable in all respects thereto.

Makowski was terminated in April 2016 for not appearing at work, but claimed that his absence was necessitated by a medical appointment. He was reinstated but was again terminated in June, and filed suit, claiming that his termination violated his employment contract and constituted unlawful retaliation for exercising his rights under the federal and Maine Family Medical Leave Acts. Maine Standards moved to stay the case pending arbitration.

The Superior Court stated that the issue before it was whether Makowski’s statutory claims of unlawful retaliation qualified as “claims with respect to [the employment agreement].” The court noted that all of Makowski’s claims for breach of contract were based, at least in part, on actions by the company to end his telecommuting arrangement. At the same time, Makowski claimed that the unlawful retaliation began when he stayed away from the office (to attend a medical appointment) on one of his telecommuting days, and that the telecommuting arrangement evolved into an accommodation under the family medical leave statutes.

The court held that because Makowski’s statutory claims were “factually intertwined” with his contractual claims, the statutory claims were also arbitrable, and granted the motion to stay the case pending arbitration.

Makowski v. Maine Standards Co. LLC, Maine Superior Court (Warren, J.) Cumberland Dkt. No. CV-16-276, June 19, 2017.

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Why Bother with Yellow Flowers When You Really Want a Turtle? by Meredith Richardson, posted on July 19, 2017

(Past member) — Thu, 20 Jul 2017 02:34:41 GMT

“Would you take me to go look at the yellow flowers?”

It seems like a simple request, but it was, in fact, perfectly tailored to meet both my nephew’s needs and his in the moment.

I was visiting my family. My mother had suggested that I go look at the yellow flowers in her garden and I brought my two-year-old nephew along with me to see them.

He spent less than 30 seconds looking at the yellow flowers. What caught his eye was the ceramic turtle nearby. While I checked out the flowers, he happily played with the turtle. Then, while I waited, he continued to play with the turtle. Finally, after a bit, I brought him back inside where the rest of the adults were.

We adults resumed our conversation, which was not very exciting for a two-year-old boy.

“Aunt Meredith,” he asked, “would you take me to go look at the yellow flowers?”

Time stopped for a second, at least on my end, as I processed this request.

“I don’t think you want to go see the yellow flowers,” I said. “I think you want to see the turtle.”

“Yes!” He beamed. “Would you take me to see the turtle?”

My nephew is two and he can create a win-win situation and sell it to me as being all about me.

I’m not asking you to go that far. I think it’s better to be transparent and tell the person how the proposed solution could benefit everyone involved.

Still, he is only 2. And we were able to have a conversation where we each saw and spoke about the benefit that the other person could get out of the same event.

When we are in conflict, we can lose sight of anything other than what we want. We can’t see what the other person wants and we don’t care what the other person wants. We get tunnel vision.

When you find yourself getting tunnel vision, when all you want to do is focus on is the turtle, take a step back and look for a way to meet both your needs and the needs of the other person. Look for the turtle AND the yellow flowers.

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Mediation in Construction Cases by Sonia J. Buck, posted on April 17, 2017

(Past member) — Mon, 17 Apr 2017 13:33:42 GMT

Most construction contracts contain a dispute resolution clause, setting forth in advance the manner in which disagreements regarding the contract will be addressed. Maine’s Home Construction Contract Act requires, at a minimum, a statement allowing the parties the option of adopting a method for resolving contract disputes without the time, cost, expense, and uncertainty that comes with litigation. Typically, the statement sets forth a choice between arbitration or mediation. Most standard form construction contracts also contain dispute resolution provisions.

In construction cases, disagreements often involve factual issues of workmanship, delay, cost, and differences of opinion and expectations, rather than complex legal issues. Especially in residential cases, the parties tend to be emotionally charged and
frustrated. A well-trained mediator can be a productive neutral force between homeowners, who do not take lightly their investment in a significant asset (their home), and contractors, who do not appreciate their workmanship being called into question. Both parties tend to want to put the matter behind them, and a properly run mediation session can help them achieve this common goal.

Disputes between contractors and their suppliers or subs can also be detrimental in a business sense. In addition to the cost, delay, and bad feelings litigation can foster, important business relationships between the parties can be put at risk. Maine is a small state, and a good mediator can help the parties mend fences so that they can continue to support each other in the close-knit construction industry.

When selecting a mediator to assist with your clients’ construction disputes, an attorney with a strong background in all avenues of construction litigation is advisable. An experienced construction mediator can more efficiently prepare for the mediation without spending the parties’ time and money to learn the fundamentals of the construction business. In addition, an attorney who has successfully handled several construction cases over a period of many years can offer insight as to what a court may do with a particular legal position, and/or what obstacles the parties and their lawyers may face at trial. After a successful mediation, the parties are able to move on, without the uncertainties and expense of protracted litigation. Even when a mediation session does not completely resolve a dispute, it can often narrow the issues and/or partially bridge certain gaps in the parties’ positions and expectations, hopefully making the matter ripe for settlement down the road.

About the blogger:

Sonia J. Buck is a litigation attorney as well as a trained mediator. Attorney Buck serves on many mediation rosters, including the Superior Court’s roster for mediation, arbitration, and early neutral evaluation. Her court mediation work also includes family law cases, small claims, landlord-tenant matters, and foreclosure diversion mediation. Sonia is a board member of the Maine Association of Mediators and was appointed to the Association’s roster for the Maine Real Estate Mediation Program. She also handles private mediations with a heavy focus on real estate, construction, business, and contract disputes.

Irrational Behavior by Phil Moss, posted on April 03, 2017

(Past member) — Mon, 03 Apr 2017 19:14:50 GMT

Here are several books that mediators might find interesting and useful.

1. In their book, Mistakes Were Made (But Not by Me): Why We Justify Foolish Beliefs, Bad Decisions, and Hurtful Acts (Harcourt, Inc. 2007), psychologists Carol Tavris and Elliot Aronsonexplore and explain why it is so hard for presidents, bishops, police and prosecutors – and all the rest of us – to admit mistakes: “Most people, when directly confronted by evidence that they are wrong, do not change their point of view or course of action but justify it even more tenaciously. Even irrefutable evidence is rarely enough to pierce the mental armor of self justification.” The book explains cognitive dissonance and related concepts (such as the confirmation bias) and illustrates how they permeate every aspect of our society. The examples range from the tragi-comic story of cult members who gave away their earthly belongings in anticipation that they would be transported to another planet by aliens, to the truly tragic stories of innocent people convicted by police and prosecutors who persuaded themselves that the accused were guilty, despite irrefutable evidence of their innocence, or of social workers who convinced themselves that they were eliciting repressed memories of sexual abuse from children, when in fact they were implanting such “memories.”

2. For many years, economists pursued theories premised on the assumption that consumers make rational choices. It turns out that this is not necessarily so: our decisions are hobbled by all kinds of biases, as shown by the work of Israeli psychologists Daniel Kahneman and Amos Tversky, described in a new book by Michael Lewis, The Undoing Project: A Friendship That Changed Our Minds (W. W. Norton & Company 2016). Kahneman and Tversky challenged prevailing assumptions about the decision-making process and showed the ways in which the human mind errs, systematically, when forced to make judgments in uncertain situations. Their work created the field of behavioral economics, and advanced the field of evidence-based medicine, among other advances.

3. The February 17, 2017 issue of The New Yorker contains a review by Elizabeth Kolbert of three other new books. In The Enigma of Reason (Harvard Univ. Press 2017), cognitive scientists Hugo Mercier and Dan Sperber argue that our ability to reason did not evolve to enable us to solve abstract or logical problems, but instead to help us resolve the problems posed by living in collaborative groups. In a nutshell, it was more important to our hunter-gatherer ancestors to win arguments and maintain their social standing in the group than to reason clearly. In The Knowledge Illusion: Why We Never Think Alone (Riverhead Books 2017), professors Steven Sloman and Philip Fernbach describe how and why people believe that they know way more than they actually do, which they call “the illusion of explanatory depth.” Our reliance upon other people’s expertise has served our species well in the area of technology, they argue, but not so well in the area of politics and policy making. For example, when A has an opinion on, say, the Affordable Care Act that is baseless, and B relies on it, B’s opinion also is baseless; when B talks to C and C agrees with his opinion, C’s opinion is also baseless, but now that the three of them concur, they reinforce each others’ belief and tend to reject any information that contradicts their belief (remember what Tavris and Aronson said about cognitive dissonance and the confirmation bias in Mistakes Were Made?). Finally, in Denying to the Grave: Why We Ignore the Facts That Will Save Us (Oxford Univ. Press 2016), Jack and Sara Gorman cite research that suggests that we experience genuine pleasure – a rush of dopamine – when processing information that supports our beliefs, even when those beliefs pose a real threat to our well-being, such as the conviction that vaccines are dangerous.

About the blogger:

Phil Moss is a member of the State of Maine’s Panel of Mediators, and has been active in alternative dispute resolution since he first entered the legal profession. In 1975, Phil was one of fifty attorneys who volunteered to participate in the pilot mediation program for the Boston Municipal Court, and in subsequent years he volunteered as a participant in pilot mediation projects for the Maine Human Rights Commission and the Maine Superior Court system. As an advocate he participated in well over 100 arbitrations and mediations, involving the hospitality industry, trucking and warehousing, supermarkets and public utilities (including nuclear power), among others. For a number of years prior to his retirement from the active practice of law, Phil was included in New England Super Lawyers, and listed in Chambers USA, America’s Leading Business Lawyers and in The Best Lawyers in America. Phil has worked pro bono publico for a number of organizations, including the Jewish Community Center of Portland, ME, the Pine Tree Council of the Boy Scouts of America and the Maine chapter of NAMI (National Alliance on Mental Illness).

Elder Mediation: Helping Families Make Aging Parent Transition Decisions While Preserving Relationships by Peter W. Schroeter, posted on March 05, 2017

(Past member) — Sun, 05 Mar 2017 15:55:22 GMT

Many people with aging parents may be all too familiar with the following situation. A decline in the functional status of an elderly parent forces the need, sometimes suddenly and unexpectedly, for a family to have to make major complicated decisions about the parent’s well being. Forgetfulness and physical difficulties performing household activities such as cooking, cleaning and climbing stairs trigger the need to assess care giving and changes in living situations. Driving mishaps such as a fender bender or difficulty in reaching familiar destinations prompt consideration of whether it is time to “take the keys”.

DIFFICULT DECISIONS FOR FAMILIES

Although there has been a growing awareness among the adult children of potential problems, there may not yet have been any serious collective discussion or planning. The family members are geographically spread out and have different levels of involvement with their parents and knowledge about their healthcare and financial situation. The adult children have dissimilar financial and family circumstances that create diverse perspectives on care giving roles and financial management and asset distribution.

In view of the medical, legal, financial and emotional challenges of the aging transition decisions that have to be made, the potential for disagreement and conflict among the family is high. There is the inevitable tension between the parent’s desire for independence and their increasing need for support. Those who have been providing for most of the care needs may be resentful of those that have not and believe that they should receive “caregiver equity”. Old issues of sibling rivalry and parental favoritism can rise to the surface, making already difficult communications that much harder.

According to elder law attorney Martin Womer of Maine Center for Elder Law in Kennebunk, Maine, dysfunctional communications among family members is apt to occur “when it is about to become expensive” due to the need for change in the parents living situation, such as the provision of extensive care giving or moving to an assisted or full care living facility. As Womer explains, “What you often see is a sibling who has been uninvolved in what is happening, suddenly wants to be an equal participant or take control of the situation to protect his or her inheritance. If the communications about the decisions that need to be made then become confrontational or are avoided because of the tension, there can be serious adverse consequences, including litigation which destroys family relationships.”

USING MEDIATION TO ADDRESS ELDER ISSUES

To deal with these difficult communications and decisions, families are increasingly turning to Elder Mediation as a process to help avoid and resolve disagreement. The growing national trend is not surprising when considering that the 85 and over age group is the largest growing demographic in the United States and there are over 20 million adult children acting as caregivers, 60% of whom are still working.

Elder Mediation provides a forum for the family members to be heard, learn what is important to each participant, face disagreement, find common ground and develop creative solutions. The process is nonbinding and confidential, participation is voluntary and decisions are made by consensus, not by the mediator. The mediator is a neutral party skilled in listening, diffusing tensions and identifying the interests of the participants. When there is no professional neutral present to help guide the family members towards finding common ground, family meetings can expose more pain than resolve problems.

Mediation can be particularly helpful to elder law attorneys faced with the potential conflict of representing the senior, but necessarily having to deal with family members whose positions conflict with that of their client. On behalf of the senior, the attorney often works closely with one of the adult children who has been most involved with their parents’ situation. When communications occur between the attorney and other siblings with differing views on decisions that need to be made, the issue of “who is the client?” is raised for the attorney. According to Womer, “While the attorney can explain the options and legal ramifications to siblings not allied with their parents, they cannot advocate their positions, even if they have merit, without risking a perceived or actual conflict, and their ability to advocate for their client can be compromised by their effort to achieve consensus,”

HOW ELDER MEDIATION WORKS

Because it typically occurs when there is disagreement over aging parent decisions that have not yet risen to the level of dispute were attorneys have been hired or litigation started, the mediation process is different from that which is commonly experienced in pending probate or other types of litigation. Mediation in those settings typically starts with the submission of position papers with detailed factual and legal analysis by the opposing attorneys. At the mediation session opening presentations are made with all the parties together followed by back and forth negotiations conducted by the mediator meeting with the parties separately.

The elder mediation process begins with an intake session between the mediator and family member, trusted advisor or referring professional who has initiated contact. Preliminary background information is obtained and there is a discussion of who should participate and how payment will be handled. The decision to move forward with the process and the details are set forth in a participation agreement signed by everyone.

Once the agreement is in place, the mediator conducts private sessions with all of the parties, usually by telephone. The sessions provide an opportunity for a confidential exploration of each party’s interests and their view of their parent’s needs and the position of others. Womer says “that it is this type of communication, which can be critical to finding out important family dynamics, that an elder law attorney cannot have with family members not allied with their client”. Information is obtained to identify any behavioral or relationship issues that need managing at the group session and any potential neglect or abuse.

Based upon the information developed from the private sessions, the mediator prepares an agenda and suggested topics list for the mediation session. Although the session is run as a group session, the location will have extra rooms for the parties to meet privately with each other or with the mediator to help deal with confrontational or emotionally charged communications and to conduct separate negotiations if necessary. Depending upon their physical and mental health, the participation of the parents can range from not at all to being present for the entire meeting.

The meeting proceeds with a focus on identifying interests and facilitating understanding between the participants. It typically lasts a half day, but can be shorter or longer or continued to another session as may be agreed. To the extent that understandings and agreements are reached, the mediator will work with the participants to draft language for memorandums of understanding and agreements which are helpful to solidify decisions and provide guidance for communications on future issues. Attorneys participating for some or all of the parties at the session or available as a resource can enhance the progress towards settlement by explaining legal issues and reviewing and drafting agreements.

Although some may be skeptical and resistant to the idea of paying “an outsider to tell them how to run family business”, Elder Mediation can save families from the potentially devastating financial and emotional costs of waiting too long and then having to make decisions in “crisis mode”. Attorney Womer believes “that it is an underutilized opportunity to resolve issues and overcome communication problems that can create ticking time bombs”. The process allows everyone to be heard and express what they want to happen in a safe environment. It helps the parties to be open-minded, respect each other’s viewpoints and develop a sense of optimism that the group can come up with good solutions, all of which are important to making the best decision for the parent’s well-being while preserving family relationships. Because the relationships involved and the decisions that need to be made are continuing, the value of Elder Mediation goes beyond the resolution of pending issues by creating a blueprint for future decision-making.

About the blogger:

Peter Schroeter is an attorney with Shaheen & Gordon, PA., where his practice focuses on Mediation and Dispute Resolution Services. He is a member of the National Academy of Distinguished Neutrals, rated AV by Martindale-Hubbell and recognized by Best Lawyers in America in Mediation

When Mediation Becomes a Client’s Day in Court by Gregory S. Clayton, posted on February 05, 2017

(Past member) — Sun, 05 Feb 2017 16:00:57 GMT

Not long ago, alternative dispute resolution was one of the many stopping points on the path to trial. ADR was something you checked off the list as you prepared a case for a presentation in a courtroom. Increasingly, though, ADR has become the last step in the life of a lawsuit – the ending place where litigation is concluded.

The emergence of ADR, and specifically mediation, as the process by which most cases will end, requires fresh thinking about the client’s role in a mediation and how counsel will approach this process.

With few clients ever seeing the inside of a courtroom, let alone getting to tell their story to a judge or jury, there is a corresponding need for clients to have a speaking role within the mediation process. In reaching a resolution, each client wants to feel that his or her story has been told, listened to and counted.

It is easy to forget that a client’s perception of fairness and sense that mediation has produced a just outcome often is not tied to a dollar amount – the value system that the judicial system superimposes on the nuanced personal problems that find their way into suit. The perception of fairness draws as much from the process as from the ultimate result: clients’ beliefs that mediation allowed their voice to be heard and their sense that their position was effectively advocated.

I sometimes run into counsel who are reluctant to allow their clients to talk in a joint session and then immediately try to interpose themselves as a protective buffer between mediator and clients in private caucuses. The attorney becomes the filter for any communication with the mediator, boxing the client out of any meaningful role in the process, let alone a chance to talk about what is personally important. A skillful mediator will work around the filter and find ways to start a dialogue directly with the client. Skillful counsel will invite a direct conversation between the mediator and the client in private session and may even encourage the client to have a speaking role as part of the joint session.

Open conversations between mediator and client have value on a number of levels. They allow a relationship of trust to develop that may be critical to resolving a case when negotiations get difficult. These conversations are also informational and may provide the basis for creative approaches to resolution that are not immediately apparent from the claims in the lawsuit. They also sometimes will result in new information that can be significant in working toward resolution. If counsel insist on talking for their clients, these conversations cannot take place.

Although there is a risk if counsel talk too much when they should sit back, there is also a risk when counsel do too little and fail to advocate for their client in the joint session. How often do we hear this statement: “We have set out our position thoroughly in our mediation summary, and I don’t have anything else to add.”

From the perspective of a client looking to counsel to advocate his or her case, this is akin to an attorney waiving opening statement at trial and not calling any witnesses. While I am not a fan of exhaustive presentations by counsel in joint sessions, I do think that clients want to know that someone was advocating their position and making sure that they were heard.

There are limited cases where counsel will jointly agree not to make opening presentations to avoid further upsetting parties who cannot be together and starting the mediation off in a direction away from settlement. Those situations should be the exception.

Another problem that occurs infrequently in northern New England, but can have a profoundly negative impact on the mediation process, is counsel who decide that the mediation process is the opportunity to prove his or her worth by demeaning and insulting the opponent and the opponent’s attorney. The level of professionalism expected in a courtroom should be counsel’s baseline at mediation. Experienced counsel know how to make effective points while maintaining an atmosphere of respect. Successful mediation is ultimately a facilitated negotiation process, and offensive behavior is an odd strategy to promote settlement.

If mediation is the new paradigm for case resolution, the level of preparation prior to mediation has to increase. It does not help to go into mediation having never discussed settlement ranges with one’s client. It does not help in a multi-defendant case if the defendants have not even discussed allocation or levels of participation. It does not help if lien amounts are unknown, lienholders have never been contacted and there is no way to reach them at the mediation. It also does not help if significant new medical bills or other new evidence of damages are handed to the other side for the first time at mediation session.

A recurring problem in personal injury mediations is insurance carrier participation. Although the logistics of having an out-of-state claim representative appear in person are sometimes daunting, it often sends the wrong message if the plaintiff shows up in person only to find the other side is “available by phone.” If a claims person is not going to attend in person, make sure this is known and agreed to by opposing counsel. Consider arrangements to join that representative in the joint session by Skype, WebEx or phone. On the defense side, an insurance representative would be less than happy to show up in person to a mediation only to find that the plaintiff is not attending but will be available by phone “as needed.” Personal attendance by decision makers on both sides communicates respect and commitment to the mediation process. It improves prospects for a successful resolution.

Negotiation strategies in the course of a mediation are different from attorney to attorney and from case to case. One strategy that accomplishes little – except immediately starting the mediation off on the wrong foot – is moving backwards from a pre-mediation settlement position by taking an offer off the table or starting out with a higher demand than was in play pre-mediation. Although inexperienced counsel may think that this type of negotiating shows “toughness” to a client, it can create very unrealistic client expectations and usually backfires. This type of gamesmanship can quickly make the dispute personal and distract attention from the more meaningful issues of case valuation and risk.

With mediation displacing trial as the forum in which we resolve most disputes, we need to rethink what this means for clients and their role in the litigation process. As counsel, we also need to rethink what we are trying to accomplish and how we can be most effective if mediation is the practical ending point for most cases. This transition is happening. The most effective mediation counsel, like the most effective trial counsel in years past, will be fully prepared for these unique challenges and opportunities.

This article first appeared in the New Hampshire Bar News – October 19, 2016

About the Blogger:

A shareholder at the Primmer Law Firm and an adjunct professor of negotiation at Vermont Law School, Gregory S. Clayton mediates cases throughout New Hampshire, Vermont and Maine.

He may be contacted by email or at (207) 618-6070 or (603) 444-4008.

Using Mediation in State Administrative Processes by Rebekah Smith, posted on January 15, 2017

(Past member) — Sun, 15 Jan 2017 15:24:57 GMT

Mediation has become a critical component of dispute resolution in three administrative settings in Maine state government, suggesting that other agencies should explore the possibility of instituting mediation as part of their adjudicatory or dispute resolution processes. The Maine Department of Education and the Maine Human Rights Commission have had great success instituting high-quality, low-cost mediation programs that reduce the number of cases that require further adjudicatory processing. In addition, the Office of the Attorney General has a long-standing phone conciliation program that reduces the number of consumer complaints that require agency resources.

The Maine Department of Education was a leader among states in offering mediation, which it began to do in the late 1980s. When special education services are at issue, a parent or a school district may file a request for either a complaint investigation, conducted by a Department of Education employee on behalf of the Commissioner, or a hearing, conducted by an independent hearing officer contracted by the Department. A request for either process provides the opportunity for the parties to take part in mediation paid for by the Department. A stand-alone mediation may also be requested, even without the filing of a complaint investigation or hearing request. The Department’s roster of experienced mediators, who contract with the Department, are assigned to cases on a rotating basis.

The focus of these mediations is most frequently the eligibility of a student for special education services, or the configuration of services or placement of a student who has already been deemed eligible. Although school districts nearly always consult with a lawyer, the school district may only bring a lawyer to the mediation if the parents also are represented by a lawyer or non-attorney advocate. To the maximum extent possible, agreements are finalized in writing at the conclusion of the mediation and routinely include the withdrawal of the hearing or complaint investigation request by the complaining party. There is no cost to parties to participate in this mediation program nor does it result in any delay in the adjudicatory process. The Department has found that having a mediation program in place greatly reduces the number of due process proceedings that are held, at significant cost savings to the Department and the parties in the long run. In the past three fiscal years, 84 cases have been resolved through mediation, with nearly half that number of hearing or complaint investigation requests also being withdrawn, often a result of resolution following the formal mediation. Mediation in this context is also particularly useful to parties, who are often in an ongoing relationship around the education of the student, a relationship that may continue for many years to come. Resolving a dispute through a collaborative process such as mediation greatly increases the quality of the parties’ relationship going forward, ultimately serving the best interests of the student. As one mediation participant responded as to why she chose mediation, “[m]y preference [was] for mediation in order to end the long drawn out process of a hearing. Mediation would appear to assist with emotions and trust remains between family and school.”

The Maine Human Rights Commission has more recently created a mediation program and has seen a significant increase in interest in participation from parties in recent months. With grant funding secured through the Skadden Foundation in 2011, I helped the Commission conduct a review of mediation programs at other Human Rights Commissions in New England. Following that review, in 2012, the Commission instituted its own mediation program by rule, also using a small roster of experienced, contracted mediators.
Mediations cover the gamut of issues that may be raised before the Commission alleging unlawful discrimination. The Commission has a standardized set of agreements that the parties may use to memorialize an agreement and modify as they wish, although the Commission must also sign any agreement reached by the parties. Further, even if the parties reach a private settlement and opt to dismiss their complaint with the Commission, before it will dismiss the complaint, the Commission requires the parties to disclose the terms of the agreement, which it utilizes in the aggregate for data collection purposes. The majority of mediated cases allege employment discrimination; remedies can include reinstatement, reasonable accommodations, letters of reference, modified policies, compensatory or punitive damages, and attorney’s fees, among others. In public accommodation claims, remedies might include the respondent ceasing and desisting from an unlawful practice, instituting new policies, participating in training, or paying damages or attorney’s fees. Although the mediation program is utilized less frequently in the context of alleged housing discrimination, common remedies include reasonable accommodations, participation in training by the respondent, development or modification of policies, and actual or civil penal damages.

The Commission is not able to offer mediation to all cases, but instead selects cases based on Commission staff’s assessment of the possibility of resolution and the interest of the parties in participation. Parties are offered access to the mediation program after the Commission has received the respondent’s answer to the complaint and response to the request for information and documents and after the complainant has filed a reply supporting his or her complaint. Once a referral to mediation is made, further investigation of the case can remain on hold pending the conclusion of the mediation.

Tight budgets at the Commission have resulted in a shift of the cost of the mediation to the parties, although participation remains a bargain. Since the implementation of a new rule in September 2014, each party to the dispute is required to pay a fee of $200 to participate in mediation. The Commission has created a scholarship program to allow parties who are not able to pay the mediation fee the opportunity to participate. The Commission has found that the mediation program is highly successful in resolving cases, thereby removing the need for full Commission investigation of those cases. In the first nine months of the program, the parties successfully reached agreement in 17 out of 23 cases. Feedback about the mediators on the roster is also very positive — as one attorney representing a complainant indicated: “Awesome mediator. Great communication, empathy, patience, professionalism. We achieved rough justice, always the goal. Thank you for offering this program.”

Both the Department of Education and the Commission have statutes or rules to supplement the applicable Maine Rules of Evidence regarding confidentiality of the mediation process as well as conflict of interest requirements.

Both the long standing mediation program of the Department of Education and the newly revived program at the Maine Human Rights Commission show the benefits of a mediation program both in terms of saving government funds and also in terms of shortened length of time to resolution for parties. Although full-blown mediation programs staffed by experienced mediators are the ideal, other agencies have enacted modified mediation programs to help resolve cases and conserve resources. The Attorney General’s office started a volunteer mediation program in the 1980s that provides phone mediations in consumer complaints. Once the Attorney General’s office receives a complaint, it forwards the complaint to the business along with the relevant chapter from the Attorney General’s Maine Consumer Law Guide. A cover letter urges the parties to come to an agreement, which results in the resolution of about 20% of filings. If there is no resolution with the initial letter, a volunteer mediator has telephone communication with each party in an effort to find a resolution. About 50% of all filings are resolved through the volunteer mediation program, often resulting in funds being returned to the consumer. In other states, including Georgia, Florida, and Ohio, mediation programs have been instituted to resolve citizen complaints of denial of access to public documents.

With a little creativity and thoughtful implementation, it is likely that mediation programs could be instituted in many other areas of Maine state government to aid the voluntary resolution of disputes and save limited state resources.

This article originally appeared in the June 2015 Special ADR issue of the Maine Lawyers Review.

About the Blogger:

Since 2005, Rebekah Smith has maintained a neutral legal practice, specializing in mediation, arbitration, administrative law judging, and independent outside investigation. As a mediator, Ms. Smith has mediated many hundred cases on a wide range of topics, from real estate to human rights. She thoroughly explores all avenues to settlement and enjoys bringing parties together to resolve their situation creatively. In addition to providing mediation and independent investigator services for private parties, she serves as a mediator or arbitrator for the Maine Department of Education, the Maine Labor Relations Board of Arbitration and Conciliation, the Maine Human Rights Commission, and the Maine Court system (Foreclosure Diversion Program, Small Claims Court, Landlord-Tenant matters, and Superior Court roster). As an administrative hearing officer, Ms. Smith presides over hearings for the Maine Department of Professional and Financial Regulation (and several licensing boards affiliated with DPFR), the Maine Public Employees Retirement System, the Maine Board of Emergency Medical Services, and the Maine Department of Public Safety. She is a Policy Fellow at the Margaret Chase Smith Policy Center and she has also served as an Adjunct Legal Studies Professor at the University of Maine at Augusta. Ms. Smith is also a member of the Board of Directors of the Maine Association of Mediators and the Board of Directors of Children’s House Montessori School.

Preparing Your Client for Mediation by Peter W. Schroeter,, posted on December 09, 2016

Fri, 09 Dec 2016 17:19:10 GMT

It goes without saying that good case preparation is critical to a successful mediation. Good client preparation is equally important. All too often counsel will ask for use of a conference room half an hour before mediation to meet with a client and it becomes quickly apparent as the mediation progresses that it was the only attorney-client meeting to prepare for the mediation. Caught by surprise by what opposing counsel does in the opening, by what the mediator says about the process and their case and the rigors of extensive back and forth negotiations, clients can become anxious, defensive, and angry. Those types of emotional reactions interfere with the good listening and objective thinking that is essential for effective and realistic negotiations and good outcomes.

A client should not be brought to mediation without at least one extensive preparation meeting within a week or so of the mediation. Considerable time should be spent making sure the client understands the procedure and its nuances. The client should be prepared for the possibility that opposing counsel may direct their comments to them in the opening session and that they may have to listen to things that are difficult for them to hear. At the same time they should be reassured that they will not be subject to examination or even have to speak while the parties are together. Counsel and their clients should discuss and decide together whether there is anything the client can say in the opening that would be helpful to their position without posing a risk that it would do more harm than good.

The client should be fully educated on what counsel will say and what documents will be used, and why, in the opening. They should understand that it is a highlight summary presentation and not all the evidence, including things that they think are important, will be discussed, but that there will be opportunity for them to “tell their story” in the individual sessions with the mediator and include those items in the negotiations. They should be as fully prepared as possible for what opposing counsel will say and how. Making sure that clients have the opposition’s mediation submission will be helpful in setting realistic expectations.

Similarly, clients should know what to expect to hear in the mediator’s opening remarks, including the confidentiality aspects of the process, its nonbinding nature and the need to listen carefully and understand the risks and uncertainties of proceeding to trial. They should be made aware that the mediator is likely to be discussing the risks and potential problems with the client’s case more than its strengths. They should understand that this does not mean the mediator is “against them” and that the mediator will be taking a similar approach with the other side. Clients should be told in advance that the mediator can be asked to leave the room for private conferences between client and their attorney, that private communications with the mediator can be kept confidential from the other party and that they are likely to experience long, drawn out back-and-forth negotiations, sometimes based upon “positional bargaining”, unlike others that have experienced in their lives when purchasing cars or houses.

While the increased use of mediation has made it a familiar and regular activity for trial lawyers, they should remember as they prepare their clients that, for them, it is a new experience and very important day and should be treated as such.

About the Blogger:

Peter W. Schroeter began practicing law in 1980 as a trial attorney. Over his career he developed considerable experience in a wide variety of civil litigation matters, including business, construction, employment, insurance, personal injury, probate and real estate. Based upon that experience, including numerous jury and nonjury trials in state and federal courts and hundreds of successful settlements representing both individuals and businesses, Peter began serving as a mediator in the late 1990s. Because of his reputation for fairness and impartiality, his ability to be a good listener and his willingness to work hard and be persistent to achieve settlements, his mediation practice grew rapidly and he soon became one of the most well respected mediators in Maine. Peter’s practice is now concentrated on Mediation and other types of alternative dispute resolution work, such as Arbitration and serving as a court-appointed Referee and is a Past President of the Maine Association of Mediators.

Mediation over debate: the real way to win an argument by Amy Wood, Psy.D., posted on November 11, 2016

Fri, 11 Nov 2016 17:40:50 GMT

Amid this particularly adversarial election season, it occurs to me that fighting, though great for TV ratings, rarely accomplishes anything. I’m thinking about the presidential debates, where the more the candidates assert their positions, the more defensive and polarized they become. Fighting to outdo your opponent makes sense in debate because the idea is to prove the validity of one viewpoint over another. But when you bring that kind of aggressive, self-serving stance to personal human disagreements, you usually lose.

The secret to winning in the arena of human conflict is to appreciate that the best fixes come from synthesizing rather than isolating different perspectives. Obama, speaking of politics, is known for solving complex problems by gathering several experts – scientist, economist, historian, etc. – around a table, hearing their varying ideas, and channeling the best of what they offer into a well-rounded solution more potent than what any one of those experts could have created on their own. When you get beyond a “my way or the highway” mentality to embrace rather than reject other opinions, you release yourself from limitation and enter into an enormous playground of possibility.

This process of synthesizing differing approaches into a more powerful outlook is the heart of mediation. Instead of wasting time and money by bickering endlessly from their own hard-lined mindsets, opponents strive with the mediator toward an agreement that is greater than the sum of its parts. At best the opponents come up with creative solutions they never thought possible; at the very least they each end up with solutions they both – not just one of them – can live with.

It’s not exactly easy to put ego aside and consider the perspective of someone you may be angry with or feel betrayed by. The process is less challenging, though, when you throw out questions that work well for debating but get in the way of resolution, such as:

♦ How can I beat my opponent?

♦ How can I prove that I’m right?

♦ How can I show everyone that I am smarter/more deserving/morally superior?

♦ How can I make this go my way?

Even if you regard your opponent as a complete idiot with whom you have nothing in common, you can reach a mutually palatable settlement by unlocking yourself from a single-minded position. These questions will help you to move beyond guardedness and into the sort of productive, flexible discourse that attracts enlightened answers:

♦What solution is truly best for our kids/organization/community?

♦ How do I want to feel at the end of mediation? (Victorious, unencumbered, confident?) Other than getting my own way today, how can I get to those feelings?

♦ How would I want to describe my behavior during this mediation to my children/my boss/my students/my favorite mentor?

♦ How do I want to remember this process five years from now?

♦ How can I behave today to help this process go as smoothly as possible?

♦ What might happen today if I let empathy for my opponent, rather than a desire to win/get revenge, guide my actions?

♦ How might letting go of the outcome make this process easier/more productive?

The beauty of expansive inquiries like these is that they open up potential for equally expansive solutions. And if you’re not quite convinced that letting your guard down is better than digging your heels in, I ask that you entertain one final question:

What remedies might arise were Hillary and Donald to take their gloves off, highlight the strengths they both bring to the ring, and integrate – rather than argue – their brightest ideas into bettering our country?

About the Blogger:

Psychologist Amy Wood, Psy.D. helps adults to articulate and accomplish their own unique versions of success through psychotherapy, executive coaching, speaking, mediation, and collaborative law coaching. A pragmatic optimist, she is known for her capacity to simplify complexity and see manageable solutions amid the overwhelm of modern life and work. Dr. Wood is the author of the award-winning book Life Your Way: Refresh Your Approach to Success and Breathe Easier in a Fast-paced World, a founding member of the Maine Collaborative Law Alliance, and a member of the Maine Association of Mediators. She earned her doctorate from the Adler School of Professional Psychology, graduated from the College of Executive Coaching, and is a certified mediator.

Visit her website at amywoodpsyd.com.

How to Make your Mediation Successful: Issues about Children by Barry L. Kohler, posted on October 10, 2017

Mon, 10 Oct 2016 16:44:09 GMT

Whether through private mediation or the court mediation service [1], a matter involving the other parent and you is scheduled for mediation – and the issue has to do with your child or children [2]. How can you prepare to make this mediation successful?

What is a successful mediation? Almost all mediators define a successful mediation as one in which the parents have reached a workable resolution of the issue or issues, making court proceedings unnecessary. A couple of important points:

♦ It is not about winning or losing. Many people enter mediation thinking of the car-buying model of negotiation: one side asks for everything and the other side offers nothing and hopefully they will meet somewhere in the middle . . . or the parties walk away and look for another buyer and another seller.

But situations involving children are not like that – these types of cases have a different model: the parties xxxxshare a common interest or problem (the child’s welfare or behavior or whatever the issue might be) and they have to find a solution that works for xxxxeveryone: both the parents and the child.

♦ The resolution may not be perfect, but it is workable; that is, everyone can live with it. There is an old saying that a good outcome to a negotiation is when both sides are equally unhappy. It is sort of the same thing with a successful mediation. Rarely (if ever) does one side get everything he or she wanted. But if each side is willing to be a little flexible, each side can likely get much of what she or he hoped for [3].

♦ Mediation, because it is always voluntary [4], can only work if both sides allow for the possibility that the future can be different than the past. No one can forget how the other party acted in the past, and the future may be a repeat of the past, but people can learn and change. A parent who has not been involved may realize what s/he is missing in the life of their child, and want to become involved in a meaningful way in the child’s life.

The central issue is ALWAYS what is in the child’s best interest. If the parents cannot reach agreement on an issue involving their child, they almost always have the option of going to court. But if they do go to court, the judge or magistrate will be focused on the child’s best interest.

A party focused mainly on his or her legal rights (under the law, the prior judgment, or order of the court) will almost never do as well as the parent focused on the best interests of the child. In most cases, it is not in the child’s best interest to have no contact with the other parent. The question is how to provide meaningful contact in a way that benefits the child. Often it may involve a series of steps or stages before arriving at the desired resolution.

What all this means in practical terms is you need to come prepared to show how what you are asking is really in the child’s best interest. It means knowing what is going on with your child: what the teachers are seeing, what the opinion of the child’s doctor and therapist (if there is one) is, what is required to parent a child at your child’s developmental stage, with his or her special needs, interests, and/or abilities. The effort to gather this information in advance of the mediation shows your commitment to your child and is never wasted: this is the same information you will need if matters are not resolved in mediation and the issue must be decided by a judge or magistrate.

Along the same lines, thinking realistically about what outcome(s) you could live with – even if not perfect – is good preparation for mediation. Most of us do not like to have to make important decisions on the spot. Thinking about a range of possible outcomes ahead of time can be very helpful.

Think about what happens if the matter is not resolved in mediation. Often thinking about what will happen if no resolution is reached in mediation can motivate parties to bend a little more to avoid the alternative. Most often, the alternative is having a hearing in court. This is almost always expensive, always involves more time (both preparing and away from work), and takes a toll on both parties and the child. Sometimes it is helpful to think about how you want your child to look back on his or her childhood: parents fighting or parents with different ideas – both of whom love the child – figuring out how to co-parent in less than ideal circumstances.

When parents are able to reach an agreement rather than fight, it is a gift to their child – a gift that only the two of them can give. Many times mediation can help, especially if it is successful!

[1] The official name for the court mediation service is CADRES, which stands for Court Alternative Dispute Resolution Services.

[2] Whether there is only one child or more than one, the considerations are the same. For this blog post, we will refer to “child” but it includes “children” as well.

[3] It is never a “success” in mediation if one side just gives up and says “Whatever.” This tactic may end the mediation but rarely if ever leads to a long-term good outcome.

[4] You may be “forced” by the legal system to go to mediation, but you don’t have to agree to anything; you always have the right to have the issue decided by a judge or magistrate.

About the blogger:

Barry L. Kohler is a mediator who is an attorney, a Certified Financial Planner, and has served as the director of a bank trust department. His current mediation practice is primarily related to family matters and matters involving families and money, but he selectively accepts other types of cases. He serves on the Maine Court Alternative Dispute Resolution Services (CADRES) roster, is a FINRA-qualified arbitrator, and has served on a Maine Medical Malpractice Screening Panel. Barry has a B.A. degree in Philosophy from University of Pennsylvania, and a law degree from Cornell Law School. He mediates regularly in Portland, Lewiston, Bath-Brunswick, and various York County towns.

When is mediation used? by Nelson J. Larkins, Esq., posted on September 06, 2016

Tue, 06 Sep 2016 16:51:47 GMT

Dispute is part of the human condition. However, compromise and agreement is just as much a part of day to day living. The difficulty is often determining how to move from dispute to agreement. Mediation is an effective option.

You may wonder when it is appropriate to use mediation. Here are some thoughts:

First, it is important to understand what mediation is and is not. Mediation is defined as a negotiation to resolve differences conducted by an impartial party. It is not one party imposing their will on another. It is also not a judge imposing a final determination on parties. It is an effort to use a trained facilitator to allow the parties to explore alternatives and come to their own compromise resolutions.

Now, here are some general benefits of mediation:

Control. Mediation gives parties control of the outcome. A mediation allows for a structured process and the aid of an expert to reach a consensus parties feel comfortable living with in the future.

Time. Dispute resolution through the courts can take a huge amount of time. This is not only frustrating because of the wait involved, but the delay may cost money and further erode relationships that need to be preserved in the future.

Money. Formal dispute resolution mechanisms such as trial or arbitration can be extremely expensive. Mediation can be scheduled quickly, somewhat informally, and generally is much less expensive.

Flexibility. Mediation can be used in almost any situation where a dispute exists. It is really up to the parties to determine how formal or informal the process may be, procedures, and how to structure the negotiations. Again, this is empowering and efficient.

Future relationships. In many instances, parties with conflicts can end up with results that adversely affect relationships that need to continue into the future. By crafting an agreement through mediation, parties take the first positive step toward their future together.

Specific areas where mediation is used include:

Divorce/family law. Couples in conflict can use mediation to reach resolution and build appropriate agreements for future financial interactions and, quite often, situations with children. Parties that want to avoid the contentious nature of a contested divorce in the courts can retain a mediator to help craft an uncontested divorce agreement.

Real estate. Home and land disputes can be highly contentious. Issues over sales of existing homes, owner rights, and association disputes often are more emotional than financial, and mediation offers a cost effective method to explore realistic resolutions. The Maine Association of Mediators offers a referral service for real estate disputes (insert link).

Business disputes. Business disputes are a perfect example of when mediation can effectively save time and money, and foster ongoing relationships. Rather than invest massive time and money in formal court proceedings, business parties can create agreements that allow continuing business relationships.

The courts. Mediation is scattered throughout the court system. In Maine, mediation is used for small claims. Mediation is mandatory in family law cases where issues involve a minor child. The Maine Superior Court also has mandatory mediation for parties after initial discovery but before trial. The courts have learned through practical experience that mediation efforts are highly effective and eliminate the need for many trials.

Private disputes. The sky is the limit with mediation. The reality is that any dispute can be negotiated with the aid of a mediator. The key is to have an impartial individual who is trained and educated in the art of facilitating constructive communication. A court filing is not the only option when a dispute arises, so consider mediation first.

About the blogger:

Nelson J. Larkins is a litigation attorney with an emphasis in the areas of workers’ compensation, the Federal Longshore and Harbor Workers’ Act, employment and labor law, insurance defense, mediation, and family law. His practice involves representation of employers and defendants throughout the state of Maine and national insurance companies. He has lectured frequently to diverse groups on employers’ and insurers’ rights in the workplace, with an emphasis on litigation techniques, return-to-work efforts, and the interaction of employers and medical care professionals. Nelson also has significant experience representing clients in the area of family law and divorce matters.

How to select a mediator by Barry L. Kohler, posted on July 26, 2016

Tue, 26 Jul 2016 16:55:33 GMT

So you think mediation might help you resolve an issue causing stress in your life? These suggestions will help you come up with a short list – two or three mediators who would be acceptable to you – who might be right for your case:

Ask around. Friends or family members might have worked with a mediator in the past and may be able to suggest someone (or someone to avoid!). Even if they worked with the mediator in a court mediation, many court mediators also offer private (not court-provided) mediation services. Since mediation is a form of alternative dispute resolution (ADR) and often used to avoid litigation, most lawyers are familiar with mediation and may be able to recommend mediators who might be able to address your dispute.

Stay right here on the Maine Association of Mediators (MAM) website. Use the “Find a Practitioner” tab at the top of our home page. You can search by location or by practice area to get a list of practitioners offering mediation services. Mini bios, contact info, and links to practitioner websites will help you to narrow your search.

Decide on the mediator qualifications that are important to you. Many mediators are lawyers or are legally trained. Some have backgrounds in social services, education, the ministry, or other fields. Others have specific knowledge of an industry, profession, or other substantive topic. Many mediators have the skills to be helpful to parties with a wide range of disputes; others have specific knowledge of an industry, profession, or practice area (like divorce and family matters, real estate, construction matters, or business). You can peruse the MAM mediator list for mediators with the specific expertise you want.

Ask questions. We recommend that you interview two or three mediators on the phone or via email to determine which one is right for you. Beyond being in the right area of focus, the mediator you choose should feel right to you, meaning that you should feel comfortable with their style and confident in their capabilities.

Here’s what you’ll want to ask:

♦ How does the mediator charge (flat rate or hourly)? If hourly, what is the rate and does it apply only to face-to-face sessions or also to preparation (reviewing documents, etc.) or writing up any agreement reached in session?

♦ How is travel by the mediator charged: by the mile, at the hourly rate, no charge if local, etc.?

♦ What is the mediator’s education and professional background?

♦ How long has the person been a mediator and what types of disputes does s/he typically work with?

♦ Does the mediator have any conflicts or potential conflicts of interest with . . .[names of parties or businesses, subject matter of dispute, etc.]?

♦ How many mediation sessions might it take to resolve your particular issue(s)?

♦ What style or model of mediation does the practitioner follow and what does that mean for you in terms of how the mediation process will go?

Get the other party on board. Because mediation involves at least two parties, all parties must agree on the mediator. With that in mind, you’ll need to give your top two or three choices to the other party for their consideration. It might be helpful for you to explain how you arrived at your top choices. You will also want to invite the other party to suggest additional candidates for your review.

If you go into the mediator selection process with the goal of finding a mediator who truly resonates with you and your opponent, you are more likely to arrive at an outcome through mediation that satisfies you both. Thankfully there are many talented mediators out there. We wish you (and the other party) the very best with whoever you select.

Good luck!

About the blogger:

How do I know that I need a mediator? by Peter L. Curry, June 06, 2016

Mon, 06 Jun 2016 16:58:51 GMT

So you are dealing with some sort of conflict in your life. How do you know whether there should be a formal effort to resolve this conflict, and if so, what kind of formal effort? Would mediation be useful?

These steps will help you to figure out whether mediation might be the answer:

Determine the nature of your conflict. A certain amount of conflict is inherent in all aspects of our lives: family, neighborhood, circle of friends, employment, and extracurricular activities. At lower levels, conflict is normal, and can actually be helpful by inspiring creativity, prompting problem solving skills, and making some mundane matters seem more interesting. But at some point conflict can become corrosive and unbearable, and can put your personal and business relationships at risk. The cost to you can be either emotional, economic or both, and can have an ongoing negative impact on your quality of life. If you are at this point, start thinking about some sort of conflict resolution.
Take a mental inventory of possible approaches. If your problem is marginal, sometimes a “wait and see” approach may work. Some conflicts fade with time, whereas facing them head-on with the other party might keep them alive. Politely expressing your concerns and asking to talk about them might be a good place to start and could lead to a solution if the other party shares your desire to iron things out.But if your particular conflict is especially intense and/or of long duration and your communication history with the other party is not good, it may be time to think of a more formal conflict resolution; perhaps one that you and the other party could enter into voluntarily to more efficiently deal with the conflict. Put another way, is there some method, short of going to court, with all of the delay and expense involved, that could be used to solve or mitigate the conflict?
Consider whether the other party is up for it. Mediation is really just a structured form of negotiation, and it requires that both parties recognize that a problem exists and share the goal of resolving the problem sooner than later, with less rather than more expense. Both parties have to be willing to talk, and to listen to the other party’s concerns, for mediation to have a chance to work. The mediator will not make any decisions; the parties themselves will have to craft a solution with guidance from the mediator.
Each party has to accept the fact that neither party in a mediaiton is supposed to “win” or “lose,” and a successful mediation will produce a negotiated agreement that will be fair to both parties. If you think that these conditions might prevail in your case, you should consider proposing to the other party (or parties) involved in the conflict that mediation be tried as a way to solve all or at least part of the conflict.

What it comes down to is that mediation, on one hand, occupies a negotiation midpoint between informal discussion and, on the other hand, a formal adversary proceeding whereby the outcome is determined by an objective party (such as an arbitration or court proceeding.) Each remedy has a proper place, depending on the nature of the conflict, and you may proceed from one to the other in your quest to resolve your unique situation. The advantage of mediation is that you and the other party have a chance to custom-tailor your own solution to the problem. And if mediation doesn’t do the trick, the other remedies can still be pursued.

About the blogger:

Peter L. Curry is a retired attorney with extensive career experience in the investment management industry. He has mediated in Maine and Massachusetts in commercial and family matters. He has also served as an arbitrator for FINRA. Peter has a B. A. degree from Princeton and a J. D. degree from Columbia Law School, and served for 3 years in the US Marine Corps.

The Walk from “No” to “Yes”

Sun, 01 May 2016 17:02:15 GMT

Listen to this Ted Talk by William Ury, author of “Getting to Yes”. Mr. Ury offers an elegant, simple (but not easy) way to create agreement in even the most difficult situations — from family conflict to, perhaps, the Middle East.