Avoid A Stalemate
"Private dispute resolution allows people to maintain
confidentiality and resolve their case quickly and economically without
losing control of the outcome." MFD
One Weston Court
P.O. Box 2147
Augusta, ME 04338
Tel. 207-623-5088
Fax 207-623-2517
matt@mattdyer.com
Please Visit My Blog: Maine Mediator
Arbitration & Reference
Convenient
and Competent Dispute Resolution
Services for the Bar and the Public.
Arbitration
Arbitration provides the parties with an opportunity to have their
case decided on their own schedule without the cost and delay of a full
lawsuit. Arbitration can be confidential. And, it is
particularly suited for matters where the parties need a decision now,
and not months or years from now.
Arbitration is always done because the parties have elected to do so
and have signed an agreement stating that they want arbitration
and will abide by the arbitrator's ruling. Generally,
an arbitrator's ruling will be simple and to the point. It will
state the ultimate finding and nothing more. Sometimes people ask
for a "reasoned" ruling, meaning they want the arbitrator to make
findings of fact and conclusions of law. This is not the norm,
but it is done.
One interesting feature of arbitration is that the Rules of Evidence
do not apply. The arbitrator must only consider reliable
evidence, but it is possible that some matters that would not be
admissible in court would be fully admissible in an arbitration.
Therefore, an arbitration is much less formal than a trial.
Reference
Under Rule 53, Maine Rules of Civil Procedure, the parties may
ask
for their case to be sent to a "referee". This is not a person in
a striped shirt. They are essentially electing to send the
matter to a private judge. They make this election by filing a
motion with the court asking the court to appoint the person they have
selected to be the referee. Click here
to view a sample form for the motion.
The referee conducts a hearing and
renders a decision just as a judge would. This decision is called
a "report", and it is sent to the court for a judge's for
approval. The judge will approve the decision unless someone
files an objection. (An objection is like an appeal of a judge's
ruling in a case a judge tried.) The parties may agree before the
hearing to be bound by the referee's decision and waive any objection
to the report.
A hearing before a referee is usually conducted in a conference
room
without the public being there. The Rules of Evidence and Civil
Procedure apply just as they do in a trial in court.
A referee's report will include findings of fact and
conclusions of
law, just like a judge's decision.
Reference is often used in cases that might take a huge amount
of
time to try and the party's resources to support such a trial are
limited. Family matters and boundary disputes often fall into
this classification. The parties can control when the case is
tried and not be subjected to the "on again, off again" trailing docket
that causes many cases to be prepared more than once for trial.
If expert testimony is required, the experts can be given a specific
appointment time to testify and not spend hours waiting around in the
courthouse or being put on telephone standby.
Family matters can wait and wait for trial time. They get
on
line behind so many other cases in the courthouse, i.e., criminal
cases, juvenile cases, child protection matters, etc. Meanwhile,
the frustration of delay often leads the parties to taking steps that
make things worse.
Hearings before referees are not in public, and therefore a
great
deal of the privacy people want is provided to them. No hanging
around courthouses with total strangers listening to the details of
one's private life.
Also, once the referee is appointed, the parties need attend no
more
case status conferences in the Family Division, which often take time
while accomplishing nothing.
Hearings before referees are less formal than court
trials.
Therefore, preparation time is often much less, and there are no false
starts with the case being prepared and not reached on the trailing
docket. This results in the case costing a lot less to
resolve. Therefore, the cost of a reference is less than the
costs that are generated by taking the case to trial in court.
Fees
I charge an hourly rate for time spent in the hearing, as well
as
pre-hearing and post-hearing time getting ready and preparing a
decision. Generally, I will request a retainer based on the
amount of time that the assignment will probably take. Any
additional amount will be billed to the parties based on the
circumstances (i.e., Is there an agreement on how the cost will be paid
or is it part of the decision that has to be made?).