1-877-265-9712

Email the Administrator.

                          Professionals committed to cooperative conflict resolution.

Click above
to login


News - The views and opinions expressed in these articles are solely those of the original author and are not necessarily endorsed by the Maine Association of Mediators.  

<< First  < Prev   1   2   3   Next >  Last >> 
  • June 14, 2018 1:27 AM | Anonymous

    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.


  • May 04, 2018 10:25 AM | Anonymous

    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).

  • March 26, 2018 1:13 PM | Anonymous

    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.


  • March 08, 2018 1:48 PM | Anonymous

    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.


  • February 11, 2018 3:49 PM | Anonymous

    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:  

    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).

  • January 29, 2018 3:24 PM | Anonymous

    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:

    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).

  • November 15, 2017 4:31 PM | Anonymous

    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:  

    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).

  • October 13, 2017 4:19 PM | Anonymous

    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).

    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).

  • September 02, 2017 11:55 PM | Anonymous

    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).

    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).

  • August 28, 2017 11:29 PM | Anonymous

    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.

<< First  < Prev   1   2   3   Next >  Last >> 

Copyright @2017 Maine Association  of Mediators.

P.O. Box 8187, Portland, ME 04104, Click to Email. 

 Call Toll-Free: 1-877-265-9712 

Powered by Wild Apricot Membership Software