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Maine Mediation and Arbitration Attorney

And Why You Still Need a Lawyer

Mediation with a court mediator is generally required in any Maine 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. In a mediation the third party—mediator—does “nothing more” than try to facilitate resolution of the dispute.

Arbitration is where the parties agree to let a privately hired third party actually decide their case. In Maine, the Court can appoint that third person as a Referee, who will thereafter act as the private Judge in that case. The perceived advantage of hiring an Arbitrator or Referee is that it can be more informal, speedy, and less expensive. While the parties may agree to attend arbitration or have a Referee appointed 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.

Unfortunately, the family 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 have a particularly difficult case that we nevertheless think would settle with proper guidance, 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 have a Referee appointed to decide the case.

One advantage of a private mediator or Referee is that they can 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. A Referee 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.

This office performs a variety of mediation where the lawyer acts as mediator, scribe and liaison to the Court. That is, if we have parties to a contested family law matter who don’t want a Court battle but who do want an attorney to help them settle their differences, we will act as the “neutral”. In these circumstances, we do not represent either party and instead, work for both of them. We will prepare all of the necessary paperwork, meet with the parties and help them to negotiate an agreement. Once an agreement is reached, we formalize it as a Judgment or other final Order 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, 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 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, scribe and Court liaison for both parties.

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