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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.  

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  • October 10, 2016 12:44 PM | Anonymous

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    About the blogger:

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


  • September 06, 2016 12:51 PM | Anonymous

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

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

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

    Now, here are some general benefits of mediation:

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

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

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

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

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

    Specific areas where mediation is used include:

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

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

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

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

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

    About the blogger:

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


  • July 26, 2016 12:55 PM | Anonymous

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

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

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

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

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

    Here’s what you’ll want to ask:

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

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

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

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

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

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

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

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

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

    Good luck!

    About the blogger:

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


  • June 06, 2016 12:58 PM | Anonymous

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

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

    1. Determine the nature of your conflict. A certain amount of conflict is inherent in all aspects of our lives: family, neighborhood, circle of friends, employment, and extracurricular activities. At lower levels, conflict is normal, and can actually be helpful by inspiring creativity, prompting problem solving skills, and making some mundane matters seem more interesting. But at some point conflict can become corrosive and unbearable, and can put your personal and business relationships at risk. The cost to you can be either emotional, economic or both, and can have an ongoing negative impact on your quality of life. If you are at this point, start thinking about some sort of conflict resolution.
    2. Take a mental inventory of possible approaches. If your problem is marginal, sometimes a “wait and see” approach may work. Some conflicts fade with time, whereas facing them head-on with the other party might keep them alive. Politely expressing your concerns and asking to talk about them might be a good place to start and could lead to a solution if the other party shares your desire to iron things out.But if your particular conflict is especially intense and/or of long duration and your communication history with the other party is not good, it may be time to think of a more formal conflict resolution; perhaps one that you and the other party could enter into voluntarily to more efficiently deal with the conflict. Put another way, is there some method, short of going to court, with all of the delay and expense involved, that could be used to solve or mitigate the conflict?
    3. Consider whether the other party is up for it. Mediation is really just a structured form of negotiation, and it requires that both parties recognize that a problem exists and share the goal of resolving the problem sooner than later, with less rather than more expense. Both parties have to be willing to talk, and to listen to the other party’s concerns, for mediation to have a chance to work. The mediator will not make any decisions; the parties themselves will have to craft a solution with guidance from the mediator.

      Each party has to accept the fact that neither party in a mediaiton is supposed to “win” or “lose,” and a successful mediation will produce a negotiated agreement that will be fair to both parties. If you think that these conditions might prevail in your case, you should consider proposing to the other party (or parties) involved in the conflict that mediation be tried as a way to solve all or at least part of the conflict.

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

    About the blogger:

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


  • May 01, 2016 1:02 PM | Anonymous

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



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