|MEDIATION / ARBITRATION
(and why you still need a lawyer)
There are many so-called "alternate dispute resolution" mechanisms available in Maine. Mediation with a court mediator is generally required in any family law matter before the case may go to trial. That is, if the parties do not agree on all issues, they have to attend mediation in an attempt to resolve their dispute. In general, the requirement of mediation is helpful, because it forces the parties to actually talk to each other. The mediation requirement may be waived by the Court "for good cause shown".
The difference between mediation and arbitration is that, in mediation, the neutral third party (mediator) has no power to impose a decision on the parties
Arbitration is where the parties agree to let a privately hired third party actually decide their case. The perceived advantage of private arbitration over the Court system is that it can be more informal, speedy, and less expensive. While the parties may agree to attend arbitration after any dispute arises, arbitration is often required by a prior contract between the parties (construction and employment contracts are typical examples).
There are many private mediators (as opposed to the Court mediators) and many persons offering arbitration services in the state of Maine. These alternate dispute resolution mechanisms can work well where the parties still have some measure of trust and respect for each other, but it is almost always advisable for each party to at least consult with an attorney.
Even though you may not want to have your attorneys present at the actual mediation or arbitration sessions (so as to avoid bluster, confrontation and defensiveness, stonewalling or "digging in of the heels") each party should have reviewed the case with an attorney of their own choosing so that they are aware of all of their possible options. In any negotiating session it is imperative to have some idea of what a Judge would decide, so that you know the strengths and weaknesses of your own case. Only an experienced attorney can provide this to you. You should feel free to ask your mediator or arbitrator to let you consult with your attorney at any stage of the proceedings, and you should always do so before making any agreements.
This office often participates in private mediations and arbitrations and, in some instances, will conduct private mediations. More on our private mediation sessions below.
As mentioned above, the Family Law Court will generally require you to attend one of their mediation sessions before you can get in to have a contested case decided by the Court. Unfortunately, the Court mediators are not attorneys, and are not in a position to advise one party or the other that their case may not have merit, that their position is unreasonable, or anything of the kind. The Court mediators are there primarily to get the parties to engage with each other in a neutral setting. If we think that a case can be settled, and the client has sufficient resources, we will often recommend that we take the case to a private mediator. If the case is not likely to settle (and the client has sufficient resources), we will sometimes recommend that we proceed to arbitration. As noted above, an arbitrator may decide the case, even where the parties do not agree.
The advantage of a private mediator is that they will have a great deal of experience in the field of law concerned, and will often advise one party or the other that they should move their position. An arbitrator can hear all of the evidence in a more informal setting, hold private discussions with the parties, and decide the case in a more timely manner than it can be handled by the Court system. Both private mediation and arbitration often also save the clients money. Litigation through the Court system can be very expensive.
This office sometimes performs a variety of mediation where the lawyer acts as both mediator and scribe. That is, if we have parties to a family law matter that have the outline to a general agreement, who may want to save money by not hiring their own lawyers for the entire process, and just need an attorney to help them settle their differences, we will act as the "neutral". In these circumstances, we do not represent either party and do not enter a formal appearance with the Court. Instead, we will prepare all of the paperwork to get the case in to the Court system, meet with the parties and help them to negotiate an agreement. Once an agreement is reached, we will formalize it in the form of a Judgment and help usher it through the Court on an uncontested basis. While we will always advise both parties to consult with independent counsel before finalizing any agreement (indeed, we will advise you to consult an attorney at the outset), you will not necessarily need to hire your own attorneys for the entire process. This sort of case resolution is often the best for all parties concerned. It requires the right case and the right parties, but it is very cost-effective, low stress, and relatively speedy. Most importantly, the parties themselves remain in control.
Please do not hesitate to contact us if you think we might be of service in helping you to resolve your case through private mediation or arbitration, either acting as an attorney for you, or as "mediator and scribe" for both parties.
Law Offices of Edward A. Brown, P.A.
56B Maine Street, Brunswick, Maine 04011