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

P.O. Box 2146
Augusta, ME  04338
Tel. 207-623-5088
Fax 888-470-2763

matt@mattdyer.com

Mediation, Reference and Arbitration

Convenient and Competent Dispute Resolution Services for the Bar and the Public.

Private Mediation

Mediation is available to resolve any dispute, whether the matter is in court or before litigation commences.  Mediation can resolve civil lawsuits for damages, boundary disputes, workplace disputes, construction contracts and in any other dispute where negotiation has not produced a settlement between the parties.

It is common today for agreements and contracts to specify that the parties must mediate any dispute prior to litigation.  This makes a lot of sense.  I have mediated many such disputes and have helped the parties avoid litigation, saving them substantial time and money.

Divorces are natural subjects for mediation for several reasons:

• 
  Although the parties are breaking up, if they have children, it is critical that they reach agreement on a number of issues for the children's welfare.  Mediation allows for the careful discussion and negotiation needed to reach accord, not discord.  Children deserve a childhood.  Contested divorces in court destroy childhoods and only leave behind a wealth of unhappy memories.  We pretend this is not happening, but speak to anyone who childhood was scarred by a bitter divorce.
  
• 
  Time and money.  Divorces dragged through the courts take well over a year and often two years to complete.  The expense can be enormous.  And, this is at a time when a family living under one roof, so to speak,  (and paying for one roof) has to find a way to pay for two roofs to live under.  And all this while supporting the additional cost of litigation out of their own pockets.  In the financial times were are living in, litigating a divorce can spell financial disaster for a family.
  
  
• 
  Privacy.  Private mediation is just that - private.  Outsiders are not made privy to matters and information that are no one's business but the parties'.  Courts are by definition public institutions.
  
• 
  Mediation is confidential.  What is discussed in mediation cannot be used outside the mediation room with few exceptions.  Therefore, one can proceed in mediation without worrying that one's negotiating positions will be used against them later.
  
• 
  Control.  A divorce trial involves handing one's entire future over to the judge who happens to be sitting that day in the courthouse.  Maine is blessed with some really good judges, but they are not King Solomon.  They don't have more than half a day or so to decide what is going to happen to a family they had not even heard of before they came to court that day.  Your chances of getting your issues addressed and examined in the detail you want will increase dramatically in mediation. 
  
  

Rule 16B Superior Court Mediation

I am on the Superior Court roster of mediators.  Since the program began in 2002, I have mediated almost every type of case that  is litigated in the Superior Court.  My experience as an attorney representing real people in this court gives me the experience I need to help resolve them.  My background as a claims adjuster gives me an understanding of the practical concerns of the insurance industry that some mediators do not possess.

References are available upon request.

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.  

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.