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

Scheduling/Joining the Mediation

Joint Session

Breakout Rooms for Private Sessions

Settlement

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.

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: 

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

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:

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

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:

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,

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:

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

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:

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. Website

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

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.

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).

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.

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.