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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.  

  • September 02, 2017 11:55 PM | Elizabeth Andrews (Administrator)

    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 | Elizabeth Andrews (Administrator)

    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.

  • August 02, 2017 11:15 PM | Elizabeth Andrews (Administrator)

    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.

    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).

  • July 19, 2017 10:34 PM | Deleted user

    “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.

    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. http://meredithmediates.com/

  • April 17, 2017 9:33 AM | Deleted user

    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.

    Copyright bmwwm 123RF Stock PhotoIn 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.

  • April 03, 2017 3:14 PM | Deleted user
    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).

  • March 05, 2017 10:55 AM | Deleted user

    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”.


    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.”


    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,”


    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

  • February 05, 2017 11:00 AM | Deleted user

    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.

  • January 15, 2017 10:24 AM | Deleted user

    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.

  • December 09, 2016 12:19 PM | Anonymous

    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.

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