Under Maine family law, the Court may, and likely will, refer the parties to mediation, especially when minor children are involved in the litigation. Upon motion supported by affidavit, the Court may, for extraordinary cause shown, waive the mediation requirement.
The Court normally appoints a neutral third party, registered with the Court system as a qualified, trained, and experienced mediator, to work with the parties at mediation. The Court charges each party $80.00 for up to two mediation sessions. Parties who cannot afford the charge may apply to the court for a waiver of those fees. The mediator will explain the mediation process to the parties and conduct a friendly, open discussion with the parties. At times, during the emotionally charged process of a divorce or other family matter, the parties are often so focused on their own feelings and beliefs that they fail to hear and/or properly understand the other party's position. We have all seen this process in real life. As an innocent bystander we often wonder why the people arguing fail to see that they are really in agreement, but not hearing their agreement. Sometimes this is the case in a family matter. A mediator is good at recognizing this and gently pointing out the points of agreement as the meeting continues. Usually the parties can resolve at least a few of their disagreements, and thereby reduce the number of issues that will go before the Judge in a final hearing. At the very least the parties will leave mediation with a better understanding of each other's positions.
With rare exceptions as to threats, nothing said during mediation can be revealed to the Court without the prior written informed consent of both parties. Mediation is a time to think outside the legal box and propose solutions that please each other, regardless of what might “win” in court, and regardless of whether it is “smart”. There are no dumb questions or suggestions in mediation. The mediator may at times separate the parties and work with them individually, then perhaps bring them back together, and so forth. The mediator cannot repeat what is said in these private sessions to the other party unless that party gives consent to do so.
When one or both parties desire to meet only in private with the mediator, the mediator will respect that position and do so. At times the parties might be subject to a restraining order, or one party might be exercising too much emotional power over the other party. In these cases the sessions will be in private. Each party MUST appear at mediation and act in good faith to resolve the issues; however, there is no mandate to come to a full agreement. When agreement through mediation is not reached on an issue, the Court must determine that the parties made a good faith effort to mediate the issue before proceeding with a hearing. If the Court finds that either party failed to make a good faith effort to mediate, the Court may order the parties to submit to mediation, may dismiss the action or a part of the action, may render a decision or judgment by default, may assess attorney's fees and costs or may impose any other sanction that is appropriate in the circumstances. When the Court finds both parties mediated in good faith, the parties have the right to a final hearing before a Judge.
An agreement reached by the parties during mediation must be reduced to writing, signed by the parties and presented to the Court for approval as a court order. Even a few minor agreements can enhance the final hearing. Normally the Court holds a Status Conference immediately after the mediation session to determine whether there is any agreement and whether a second mediation might help resolve any other issues.
The Court may impose an appropriate sanction upon a party's failure without good cause to appear for mediation after receiving notice of the scheduled time for mediation. The parties should appear for mediation or call the Court ahead to request a new date.
Mediation can be a great tool, or at its worst, a good tool to improve communication between the parties. Do not fear mediation. Come prepared to be open, honest and helpful. You might just greatly reduce the costs of your divorce or other family disagreement. And that is a good thing.
The attorneys at our law office are experienced and well trained to both conduct mediation and to represent your interests during your mediation. Make sure your attorney is too.