Maine Mediator - Review & Comment

Law Court Decides Rule 53 Reference Case

2010-12-05T21:10:00.001-05:00

I have actually heard there are a few folks following this blog, for which I am grateful. But the summer months are too precious here in Maine to spend time typing away on this and that, so this is my first new entry in several months.

Reference has been popular in divorce cases for going on ten years, and some of the bigger more complex divorces are now being decided by referees. Reference has its costs, i.e., the fees for the referee. However, there are savings also, such as being able to plan exactly when a trial will take place (rather than being bounced around on trailing dockets), and presentation to a referee is generally not as complicated as a bench trial in the District Court, as it is more informal than a trial. There are savings in time and costs there also.

In Gorman v. Gorman, 2010 ME 123, decided November 30, 2010, the parties obtained an order from the District Court judge that appointed the referee, but then said they waived any objection to the referee’s report and could proceed directly to the Law Court with any appeal. There is of course no such provision in M. R. Civ. P. 53. Objections to the referee’s report must be filed, and those objections are then considered by the District Court, after which the parties may appeal to the Law Court.

And, that is what the Law Court ruled. “The process allows the court to identify and address any issues that may need correction, clarification, or further legal analysis. By addressing the objections, the court may correct errors or misunderstandings quickly and without the expense of an appeal.” 2010 ME 123, at para. 5.

In this case since the parties had obtained a judge’s order “explicitly” approving this procedure, the Law Court did not summarily dismiss the appeal, but remanded the case with directions for the parties to file their objections as they should have below.

I guess the lesson here is that while reference allows the parties to obtain a judgment more expeditiously than they probably would by waiting for the District Court to get to the case (Why else would you want a referee?), the parties can only go so far in shaping the process they are going to follow. Conferring direct appeal jurisdiction on the Law Court is not one of the options. Frankly, it was a creative solution to the problem of waiting for the District Court to rule all the while knowing that whoever did not prevail in the objection determination would go the Law Court anyway.

Toward A More Rational System

2010-07-20T21:06:00.005-04:00

From a recent article in the Kansas City Star entitled “Custody battles at home can scuttle performance at work”:

Even as the national divorce rate declines, couples who do wind up filing most often participate in a protracted and adversarial process that disrupts their home lives and interferes with their work performance. Social networking has added to the mix, becoming the latest legal tool in divorce and child-support battles and taking the drama up a notch. Add in forensic accountants and electronic paper trails, and you have the makings of long and costly divorce battles.

These contentious disputes are clogging court systems across the country. University of Baltimore School of Law professor Barbara A. Babb, who directs the school's Center for Families, Children and the Courts, says as many of half of trial court cases are family law, typically taking up to two years from start to finish. With participants fueled by a newfound hatred of their former spouse, these cases often destroy families, affect children's behavior, and cost employers money in lost time and productivity.

Babb believes there's a universal interest in moving away from the win-lose mentality that turns these cases into disruptive battles. "Many judges don't like to hear family-law cases. Court should be a last resort only for those issues can't be resolved through negotiation or mediation."

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The first question that someone will ask is who was at “fault” for all of this? We Americans spend much of our time these days attempting to fix fault for everything that has gone wrong in our society or in our lives.

Perhaps this has nothing to do with the fault and has much more to do with it is simply the way things are. Our training as lawyers teaches us to be advocates and to argue all points on behalf of our client that are to the client's advantage. And since we never know exactly what point of evidence will be the winning point, we are of course tempted to seek out as much evidence as possible and present it to the court. Meanwhile, in family cases, we are representing clients who feel compelled to “win”. This mixture of system, training and motives frequently produces a litigation cataclysm that impoverishes everyone involved in it, and that is sometimes the lawyer too.

I think of this as the American Model of Divorce. People divorcing seem to think that they must engage in a long, corrosive and expensive battle in proving all of the little points that in hindsight sometimes seem so irrelevant to their ultimate happiness as human beings.

Perhaps if the court system were more aimed at forcing people to negotiate rather than gear up for contested hearings, more productive work could be accomplished by the parties during their divorce case. Here in Maine, it might be a great deal better if the court set up a system where at several points along the way the parties were forced to sit down and negotiate rather than at only one point along the way. In a Maine divorce case, with children, if the parties indicate during the first meeting with the court that they are not in agreement, the court will automatically send them to mediation. This will be the last time the court will ask them to go to mediation, yet the court is sending them to mediation at a time in the case when they possibly the least likely to want or be able to settle it. There are many reasons for this. For instance, they have not have gotten used to the idea that they are going to get divorced and one or both of the parties are not ready to negotiate, one or both of the parties has insufficient information about financial and other issues to be confident enough to negotiate, or the small block of time the court sets aside for them is simply not enough time to negotiate all of the issues involved in the case. Yet, once the mediation ticket is punched, the parties are done with that as far as the court is concerned.

Of course, the parties may be afforded an opportunity for a judicial settlement conference later in their case, but that is not a given. They might get it, and they might not get it. And, surprising number of the judges express the feeling that judicial settlement conferences are not productive.

Is it any wonder so many cases wind up going to unnecessary hearings?

Maybe a system that was that is designed to send the parties to a series of negotiations rather than force them into a series of testimonial hearings would be a system that would avoid much of the angst and anguish displayed in the article above.

Where Have All The Lawyers Gone?

2010-06-06T10:23:00.001-04:00

Recently, I have spoken to a Justice and two experienced attorneys about their observations that there seem to be few new attorneys engaged in the court work in several of Maine’s more rural counties.

The Justice noted that after many years of absence from the bench in the Somerset County, he went up there to handle a trial docket. He was quite surprised to see that the same attorneys were practicing in the court who were practicing there ten or more years ago. There were new attorneys representing the state, but the same attorneys were there who would been there for many years representing the private litigants. He was really quite surprised.

Also, I recently spoke to two experienced practitioners, one in Lincoln County and one in Waldo County. Both were saying the same thing. That is the experienced litigators were becoming fewer and fewer, and new attorneys were not coming into the county to take their place.

I asked them why they thought they were seeing that. There were a number of reasons, and to none of them could they assign a particular percentage.

One reason is that court appointments pay so little money that more experienced attorneys simply cannot afford to take those cases on as they do not offer enough to cover one’s overhead, and there is little money in them to attract new attorneys who might seek them as a way of building up their practice, as many of us did in the past. I know from my own experience that in terms of real dollars, court appointments were paying better in the 1980's than they are in 2010. The same cannot be said for judicial and clerk salaries over the same period.

Another reason is simply the complexity of cases today and the difficulty attorneys experience when they are subject to endless trailing trial calendars, docket calls, case management conferences and so forth. And also there are now more forms, and new ones popping up all the time. We all understand that. Twenty years ago, many simple divorce files were perhaps a half-inch thick. Today, by the time one gets done with even a fairly simple case is going to be three or four times that size in terms of the amount of paper, and therefore the cost of pursuing the case..

Maybe it is that the amount of time that one has to put in on a case and the costs of that time to a client have simply made dealing with many small matters untenable. I remember discussing this issue with an experienced practitioner here in Kennebec County a few years ago. We both agreed that it probably was not cost-effective to bring a lawsuit in the District Court for an amount less than $15,000 in a case we knew would be hotly contested. $15,000!

So where are the disputes going? Well, I think they are still going into the courthouse, but they are going into the courthouse without attorneys. Years ago it was somewhat unusual to see a pro se litigant in the Superior Court, and today it is very common. In family matters, I think the Family Law Magistrates spend 80% of their day dealing with cases where neither party is represented by an attorney.

Of course, this makes things all the more difficult for the courts. People come in with little or no idea of what they are doing or how to go about it. This leads to wasting time on a grand scale.

So, where have all the lawyers gone? Here in the State of Maine where the largest employer is the State of Maine, a lot of them are in state government. Lawyers are also now working in other enterprises in increasing numbers. But it seems, unless and until things change dramatically (an event I am not holding my breath for), there will be a diminishing of the number of lawyers in our local courts representing private clients.

I would like to hear from anyone who agrees or disagrees with me on any of the above.

Some People Are Not Ready to Mediate

2010-05-04T16:45:00.001-04:00

From Florida Today, April 27, 2010 - PALM BAY, Fla. - "A 33-year-old woman faces felony charges after police said she kicked in the front door of her estranged husband's home and caused at least $18,000 in damage.

Palm Bay police said that because Jamie Foreman was upset about her husband's new relationship, she went through the residence spray painting messages on the walls, pouring orange paint on the floor and in the refrigerator.

She also ripped out appliances and flipped over furniture, police reported.

Later the woman text messaged the estranged husband to let him know that she was coming over to clean up, records show.

Foreman was charged with residential burglary, vehicle burglary, and criminal mischief after patrol officers were called Sunday to the home to investigate the damages.

"She broke seven windows, tore pictures from the walls, flipped over furniture and spray painted the word, "scumbag," on the wall," said Yvonne Martinez, spokeswoman for the Palm Bay Police Department.

"She told us that she didn't recall a lot of what happened." Martinez said the woman was with two other people who were attempting to talk her out of the rampage.

Foreman is being held at the Brevard County Detention Center in Sharpes."

* * * * *

She did say she wanted to come over and clean up, so maybe she is ready to mediate. Then again, maybe after the trial...

Reading this story I wondered if that small indication of contrition would help in a negotiation, particularly if she were ready to be very generous as a result of her bad conduct. And, if her husband was ready to take advantage of that attitude on her part, the dispute could actually settle.

The point is, the parties settle when they are ready to settle and not before. If one or both parties are still embedded in the struggle, settlement cannot be achieved. Once engaged in litigation, people will be forced to the mediation table when the court says they should go and not necessarily when the mediation would do the most good. It is good to preliminarily ask yourself if the other side is ready to settle the case or not.

Mediator's Extrinsic Evidence Inadmissible

2010-04-27T19:55:00.005-04:00

In the 2008 Indiana case of Fackler v. Powell, the parties took part in a mediation which resulted in an agreement that was approved by the court. When the husband did not pay a promissory note (to a third party), litigation was commenced. (This case went to the Indiana Supreme Court at least one other time, and there were numerous post-divorce motions filed and litigated.)

At one of the hearings, the mediator was called to testify about the terms of the agreement. Ultimately, the court found that the testimony should not have been admitted, partially because the agreement in the eyes of the court was not really ambiguous, but also due to the fact that the mediation was confidential and that confidentiality could not be breached in this case.

Indiana ADR Rule 2.11 provides that "[m]ediators shall not be subject to process requiring the disclosure of any matter discussed during the mediation, but rather, such matter shall be considered confidential and privileged in nature. The confidentiality requirement may not be waived by the parties, and an objection to the obtaining of testimony or physical evidence from mediation may be made by any party or by the mediators."

This is similar to the new Rule 514, Maine Rules of Evidence, (eff. 1/1/10) that created a mediator privilege which states that "(a)ll memoranda and other work product, including files, reports, interviews, case summaries, and notes, prepared by a mediator shall be confidential and not subject to disclosure in any subsequent judicial or administrative proceeding involving any of the parties to any mediation in which the materials are generated; nor shall a mediator be compelled to testify in any subsequent judicial or administrative proceeding concerning a mediation or to any communication made between him or her and any participant in the mediation process in the course of, or relating to the subject matter of, any mediation."

Also on January 1, 2010, the Maine Supreme Court extended the Rule 408 bar on admission of conduct or statements in mediation to all mediation "undertaken to comply with any statute, court rule, or administrative agency rule or in which the parties have been referred to mediation by a court, administrative agency, or arbitrator or in which the parties and mediator have agreed in writing or electronically to mediate with an expectation of confidentiality, is not admissible for any purpose other than to prove fraud, duress, or other cause to invalidate the mediation result in the proceeding with respect to which the mediation was held or in any other proceeding between the parties to the mediation that involves the subject matter of the mediation." Previously, Rule 408 only prohibited such evidence in court sponsored domestic mediation sessions.

There are also exceptions in Rule 514 mediator privilege that allow the testimony of the mediator, such as a plan to inflict harm or the furtherance of a crime or fraud. But I think that the Maine courts with our rules would have reached the same result as the Indiana court, i.e., the mediator's testimony would have been excluded.

So far, in Maine we have had very few cases involving parties seeking to pierce the veil of confidentiality surrounding mediation, but as mediation continues to be a hugely important part of our practice, we will surely see more. However, our Supreme Court has adopted rules, with appropriate safeguards, which essentially say "What happens in mediation, stays in mediation."

Maine Courts Limit Family Mediation

2010-04-10T08:06:00.002-04:00

http://www.maine.gov/tools/whatsnew/index.php?topic=Court_News&id=92881&v=article

Well, until the end of the current fiscal year anyway.

The court says it has had trouble collecting mediation fees, so it has to limit the number of mediation sessions until the next fiscal year. How the problem of not getting paid is being addressed, the announcement did not say. That can has been kicked into the next fiscal year.

The issue is probably the huge number of pro se litigants who fail to pay. There was a time when the court would not schedule the mediation until they were paid the mediation fee. Now, they schedule them without getting paid up front. It is administratively convenient to do so, as they have all the parties present after the various Family Division case conferences, and the clerk is able to assign a time when the parties say they can make it.

Hopefully the issue will be resolved soon.

Divorce: It's All About Control

2010-04-08T19:35:00.000-04:00

"Jockeying for control is at the heart of most contentious divorces, whether it is the stars of Hollywood or the average fan who watches them on T.V." So says Stacy D. Phillips, Los Angeles celebrity divorce lawyer. Stacy's book, "Divorce, It's All About Control: How to Win the Emotional, Psychological And Legal Wars" gets you ready to engage in this endless combat.

To "win" the wars, one often needs the bankroll of a Hollywood star. And, then there are no winners, except counsel, maybe. I am sure Stacy is a really good lawyer, but here in Maine where incomes are not, shall I say, the highest, too few people can afford the endless billing accompanying a knockdown, dragged out divorce battle.

How anyone can possibly believe that these divorce wars do not severely damage children, I do not know. They are the real losers in all this.

Mediation allows you to negotiate for what you need, and maybe what you want also. You know what the outcome is, and you don't have to wait for the judge-of-the-day to decide your fate, maybe in a way that neither party wanted. After thirty years of being in court, I have rarely seen anyone get everything they wanted form a family matter. After it is over, the parents are so polarized and hateful that the kids are a mess and have lost a huge chunk of their childhood. In all but the most well-off families, their college plans are probably in the dumpster too.

At least trying mediation with an experienced mediator with a lawyer's knowledge of family matters will do no harm, and may just resolve the case.

But, as I like to say to my clients, money spent on legal fees is never wasted. Few of them agree with me.

Maine Supreme Court Addresses Confidentiality, etc.

2010-03-30T20:45:00.000-04:00

In a ruling dealing with the previous version of Rule 408(a), Maine Rules of Evidence, the Law Court took the opportunity to clarify three concepts arising in the Maine Rules of Evidence "that sometimes generate confusion regarding the use of mediation-related evidence at trial. They are confidentiality, privilege and admissibility."

This was in the case of State of Maine v. Deane Tracy, 2010 ME. 27, which was decided on March 25, 2010. Tracy was prosecuted for presenting a falsified bill of sale to the District Court defending against a small claims action brought by two persons seeking to recover from Tracy a sum of money owed by Tracy for the purchase of a car. Essentially, during the small claims hearing, Tracy had presented the Court with a bill of sale and testified to same. Later, District Attorney prosecuted Tracy, alleging that the bill of sale was, in fact, a forgery. During the small claims action, Tracy had attended a mediation. In the criminal prosecution, the court heard arguments and considered in limine the small claims mediators statements. Tracy argued that evidence of mediation was inadmissible under Rule 408(a) of the Maine Rules of Evidence. Ultimately, the court admitted evidence concerning the small claims mediation over Tracy's objection.

As to confidentiality, the Court noted confidential communications are ones made in the context of a special relationship with the intent that it not be disclosed to any third party except in strictly limited circumstances. Confidential communications are protected by privileges established in the Maine Rules of Evidence, such as the attorney-client, health professional-patient, husband-wife privilege and religious privileges. The Court found that, "at the time of Tracy's trial, the Maine Rules of Evidence did not provide that statements made during mediation were confidential communications or that they were subject to any privilege". Therefore, these communications could be disclosed and used in a criminal trial unless admissibility was blocked otherwise by the Rules of Evidence.

Here, the Court looked at Rule 408(a). The Court noted that these statements would be inadmissible on "any substantive issue in dispute between the parties". This Rule encourages litigants to speak freely in the dispute that they are attempting to mediate and resolve. Here, however, Tracy is trying to exclude it from a subsequent criminal trial on a charge of forgery. The Court noted that it has often upheld the use of statements made during negotiations when those statements are sought to be used in a matter other than the one that was the subject of the original negotiation, i. e., not a dispute between the same parties.

The Court concluded, that consistent with its holdings in civil cases, the Rule, as constituted prior to the January 1, 2010 amendment, clearly allowed the admission of such evidence in a separate criminal proceeding, as long as it was not offered for a purpose prohibited by the Rule. The evidence was offered only for the purpose of establishing Tracy's commission of the crime of forgery, not to establish liability in the small claims action or any other civil claim. Accordingly, the Court concluded that Rule 408 (a) did not require its exclusion.

How would this decision have changed had the trial been after January 1, 2010? Significantly. This is because Rule 408 (b) has been expanded to now include blanket protection for mediation statements made at mandatory mediation, such as the one on the Tracy small claims case.

But, more on that in another post.

Massachusetts Abandons UMA - For Now

2009-08-20T18:49:00.000-04:00

Check this out on Diane Levin's Mediation Channel, a really superb mediation blog - Massachusetts has dropped further efforts at passing the UMA.

http://mediationchannel.com/2009/05/07/mediators-pull-plug-on-efforts-to-enact-uniform-mediation-act-in-massachusetts/

What happened? A working group ("stakeholders"?) attempted to define "mediator". The UMA only says that is the person who conducts the mediation. The working group representing Mass. mediators could not come to agreement. A minority felt that the UMA non-definition was fine. The majority wanted to turn the UMA into a document that defined credentials for mediators. And there it foundered.

This was serious group of folks who wanted to resolve the issue and could not.

Please see Ms. Levine's thoughtful comments.

Maine and the Uniform Mediation Act, Part III

2009-06-23T20:05:00.000-04:00

After a number of years of consideration, the Maine Supreme Judicial Court adopted Rule 514 of the Maine Rules of Evidence. The Court’s Advisory Committee on the Rules of Evidence, over the last several years, had made at least three proposals to the Court for rule changes which would deal with confidentiality and mediation. The Court also heard from a task force on confidentiality chaired by Justice Rudman, which produced an extensive report with recommendations which the Supreme Judicial Court did not wish to adopt. Therefore, Rule 514 was the product of much deliberation and suggestion.

We all know that over the years, alternative dispute resolution, and particularly mediation, has become a much more pervasive part of our system of civil justice. The Maine court, through CADRES, has rosters of mediators mediating cases at all levels in the trial courts. These mediators are in fact representatives of the court, and they should be accountable to the court system in order for the results of mediation to have any credibility.

Juxtaposed with this requirement is the fact that the parties to mediation have a legitimate expectation that what goes on in mediation will, in fact, be confidential. For example, M.R.Civ.P.16B makes mediations done through the Superior Court confidential. The Maine Rules of Evidence, Rule 408, makes what is said in mediation confidential in that it cannot be used to prove any substantive issue in the case; and with court sponsored domestic mediations, nothing said in mediation can be used for any purpose later.

The simplest way to look at Rule 514 and compare it with the UMA is to think of a triangle. At the top of the triangle would be the mediator, and at the base of the triangle on each side would be the parties to the dispute.

Rule 514 says the communications along the side of the triangle, i. e., between the mediator and one of the parties of the dispute, would be treated as privileged. However, communications between the parties to the dispute, i. e., along the bottom of the triangle, would not be treated as privileged. They would still be confidential to the extent already provided by the Maine Rules, but they would not be “privileged”.

As proposed, the UMA would make all communications in mediation privileged. They would even grant this privilege to persons attending the mediation who are not actual parties to the dispute. In other words, a situation would be set up where nothing said in mediation could be used for any purpose later on.

In the original UMA, there is a section that would allow penetration of this privilege in the event there was mediator misconduct or it was necessary to look into what had happened in the mediation for some other purpose. The section was excised from the version proposed by the Maine Association of Mediators to the Legislature. Therefore, not only is the privilege far more sweeping than the privilege granted in Rule 514, it is far more sweeping than what was envisioned by the Commissioners themselves when they wrote the UMA.

None of this is to say that MAM had some kind of bad motive in making this proposal. They merely wanted to make everything in mediation so secret that it could not be used for any purpose later on. The concern registered by many, including the Attorney General of the State of Maine, is that this privilege is far too sweeping and could hid from disclosure important information, such as information about abuse or criminal activity. Mediation confidentiality was simply not designed to shield this kind of conduct.

Maine and the Uniform Mediation Act, Part II

2009-06-11T13:57:00.000-04:00

Here is Maine Rules of Evidence 514 with Advisory Committee Notes:

RULE 514. MEDIATION PRIVILEGE

(a) Definitions. As used in this rule:
(1) A "mediating party" is a person who is participating in a mediation proceeding as a party or as a representative of a party, regardless of whether the subject matter of that proceeding is in litigation.
(2) A "mediator" is a neutral person conducting the mediation proceeding in the capacity of mediator.
(3) A "representative of a mediating party" is a lawyer, insurance company representative or other person assisting the party in the dispute that is the subject matter of mediation proceedings, including the mediation proceedings themselves.
(4) A "confidential communication" is a statement, whether oral or written, between a mediating party or representative of a mediating party and a mediator made outside the presence of others during the course of mediation proceedings and that is not intended to be disclosed to third persons.
(b) Party privilege. A mediating party has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made between the mediating party or a representative of the mediating party and a mediator.
(c) Who may claim the privilege. The privilege may be claimed by the mediating party, the mediating party's guardian or conservator, the personal representative of a deceased mediating party, or the successor, trustee, or similar representative of a corporation, association or other organization, whether or not in existence. The person who was the mediator at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the mediating party.
(d) Mediator privilege. All memoranda and other work product, including files, reports, interviews, case summaries, and notes, prepared by a mediator shall be confidential and not subject to disclosure in any subsequent judicial or administrative proceeding involving any of the parties to any mediation in which the materials are generated; nor shall a mediator be compelled to disclose in any subsequent judicial or administrative proceeding any communication made between him or her and any participant in the mediation process in the course of, or relating to the subject matter of, any mediation.
(e) Exceptions. There is no privilege under this rule:
(1) Mediated agreement. For a communication that is in an agreement evidenced by a record signed by all parties to the agreement.
(2) Furtherance of crime or fraud. If the services of the mediator were sought or obtained to enable or aid anyone to commit or plan to commit what the mediating party knew or reasonably should have known to be a crime or fraud, or to conceal an ongoing crime or ongoing criminal activity.
(3) Plan to inflict harm. For threats or statements of an intention to inflict bodily injury or commit a crime.
(4) Mediator misconduct. For communications sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediator.
(5) Party or counsel misconduct. For communications sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediation party, nonparty participant, or representative of a party based on conduct occurring during a mediation.
(6) Welfare of child or elder. For communications sought or offered to prove or disprove abuse, neglect, abandonment, or exploitation in a proceeding in which a child or adult protective services agency is a party.
(7) Manifest injustice. For communications that a court, administrative agency, or arbitrator finds, after a hearing in camera, that the disclosure of which is necessary in the particular case to prevent a manifest injustice, and that the necessity for disclosure is of a sufficient magnitude to outweigh the importance of protecting the general requirement of confidentiality in mediation proceedings.

Advisory Committee Note

The purpose of this new rule is to provide a privilege for confidential statements between parties or their representatives and mediators during the course of mediation. There is no limitation on the subject matter or the circumstances of the mediation, nor is there a particular level of formality prescribed. The rule also provides a privilege for a mediator to refuse to testify in a matter in which the mediator has performed mediation services. The proposed rule is based on similar rules in other states and on the Uniform Mediation Act, which has not been adopted in Maine. Both the party privilege and the mediator privilege are subject to a number of exceptions.

The privilege only applies to mediation proceedings conducted by a neutral mediator. Thus, when a party's lawyer, a guardian ad litem, or other person with a particular point of view to represent attempts to function as "mediator" in settlement or other discussions, the privilege is not applicable. The privilege also does not apply to conferences with "settlement judges" or other judicial officials who may be acting in a mediative capacity because of the importance of transparency of public justice institutions.

Subsection (4), which defines "confidential communication," is meant to bring those communications made in private or "caucus" sessions with the mediator under the coverage of the party's privilege but to keep communications made with all parties present outside of it. This makes the privilege for the mediating party established by this Rule narrower than that proposed by the UMA which covers all communications made as part of a mediation proceeding. The Advisory Committee rejected the broader coverage as artificial and inconsistent with the fundamental concept of a truly confidential communication between a single interest and a trusted confidant as is protected in the other privileges incorporated in the Rules of Evidence.

The definition of "representative of a party" is broad and includes all persons (such as spouses, relatives, friends, insurance adjusters or representatives) as well as lawyers who are present at the mediation session and assisting the party in the mediation.

Many states have made explicit exemptions to the privilege for information relating to administrative aspects of the mediation. This includes, for example, whether the mediation has occurred or has terminated, whether a settlement was reached, and attendance by the parties. Section 7(b) of the UMA accomplishes this objective. Such information is not privileged under this rule because it does not qualify as a "confidential communication" as defined by this section.

The individual mediator and the mediation profession have an interest in maintaining their neutrality that transcends any particular dispute. Section (c) therefore establishes broader protection for the mediator than is given to the parties under section (b). The first clause of this section makes the records of the mediator confidential and not subject to disclosure in subsequent proceedings that involve the mediating parties. The second clause gives the mediator a privilege from disclosing any communication made between him or her and any participant in the mediation. The use of the phrase "any communication," as opposed to "confidential communication" (as used in section (b) and defined in section (a)(4)) is intentional. The mediator's privilege includes not only those communications made in private caucus but also those made with others present and all other communications.

Subsection (1) of the exceptions is based on the UMA 6(a)(1) and permits evidence of a signed agreement to be introduced in subsequent proceedings. This includes agreements to mediate, agreements as to how the mediation will be conducted as well as agreements that memorialize the parties' resolution of the conflict. Consistent with the practice of most states, this exception does not include oral agreements made between the parties.

An exception for communications made during a mediation designed to further a crime or fraud, as established by subsection (2), is probably the most common single exception amongst the states that have adopted such privileges. The lawyer-client privilege established by these Rules also contains such an exception (Rule 502(d)(1)). The language of this exception draws on that used in Rule 502 as well as UMA 6(a)(4), which extends the exemption to cover cases where the mediation is used to conceal an ongoing crime. This exemption does not apply to admissions of past crimes, which remains privileged.

Subsection (3) is based on UMA 6(a)(3) and similar provisions have been adopted in many states.

Subsection (4) creates an exemption for cases in which professional misconduct by the mediator is alleged. Such a provision is increasingly common amongst states and is also present in UMA 6(a)(5). As the UMA commentary notes, such disclosures may be necessary to promote mediator accountability by allowing grievances to be brought, and fairness requires that the mediator be able to defend himself or herself against such a claim.

Subsection (5) is adapted from the UMA 6(a)(6). However, in the UMA, this exception does not apply to the mediator section 6(a)(c). The UMA justifies retaining the mediator's privilege in such cases to maintain the integrity of the mediation process and impartiality of the mediator, which would be threatened if the mediator was frequently called into misconduct cases to be the tie-breaking witness. The exemption created in this Rule applies to parties and mediators alike both due to skepticism about the frequency in which such cases occur and the compelling need for evidence when such cases do arise.

Subsection (6) makes an exception to the privilege child and elder abuse and neglect. Such provisions are common in the domestic mediation confidentiality statutes of many states. Consistent with UMA 6(a)(7), which serves as the basis for this provision, this exception only applies to proceedings to which a "child or adult protective services agency" is party. In private actions, such as divorce, the exception does not apply. For instance, if in a divorce mediation between Spouse 1 and Spouse 2, one of the Spouses confidentially admits to sexually abusing a child, that admission would be admissible in an action brought by a public agency to protect the child and the mediator could be required to testify about it, but would be privileged in the divorce hearings. As the commentary in the UMA explains, this distinction is justified because in the private proceeding there is a less compelling need for the evidence and the interest in promoting candor is greater.

Subsection (7) is designed to allow for other, non-listed exceptions to the privilege on an ad hoc basis when justice so requires. A number of states, such as Ohio and Wisconsin, have adopted such provisions. UMA 6(b) establishes an exception in certain cases, such as for the implementation of a mediated agreement, but only after it is determined, after an in camera hearing, that "the evidence is not otherwise available" and the need for the evidence "substantially outweighs" the interest in protecting confidentiality.

Several states and the UMA 5 provide for the privilege to be waived when the parties agree to do so. Since Rule 510 already makes provisions for the waiver of privileges established in these Rules, it is unnecessary to have an explicit exemption in this Rule that allows for the privileges established in subsections (b) and (d) to be waived.

The Vanishing Trial

2009-05-31T19:15:00.000-04:00

“A towering state courthouse that opened in downtown Houston last year boasts 39 courtrooms and expansion space for more. But lawyers in the city say the new building, built to handle civil lawsuits, is often eerily empty. The reason: So few cases are going to trial.

The federal courthouses in the northern district of Florida, a sprawling region that includes Tallahassee, Pensacola, and Gainesville, have been similarly quiet in recent months. The four federal judges in the district presided over just 12 civil trials in 2006 and 5 in 2005.

Around the country, plenty of lawsuits are getting filed, but fewer and fewer are going to trial. The civil trial is one of the most iconic American institutions, a time-honored forum where disputes over injuries, divorces, and all manner of business disasters are resolved. Yet rising legal costs, decreasing judicial tolerance for weak lawsuits, and the surging use of alternative dispute resolution (ADR) are combining to make courtroom showdowns exceptional occurrences.” (1)

Last year, I was speaking to one of the Law Court justices about this very issue - the vanishing trial - and he commented that maybe dispositive motions have more to do with the diminishing number of trials than some lawyers think. Business Week noted a “decreasing judicial tolerance for weak lawsuits”, which I suppose translates into more motions for summary judgment being granted.

In my Rule 16B mediation work, I am personally surprised to hear so many trial lawyers talking about the fact that summary judgment will be sought as soon as such-and-such a deposition is completed. I am seeing summary judgment motions filed in cases that we used to go to trial on without giving summary judgment a lot of thought. I also hear judges are more likely today to take the decision away from the jury by granting summary judgment motions.

So, while we all credit mediation with deflecting cases from trial, I wonder how much of the credit should go to dispositive motions. It would be interesting to see the statistics here in Maine, if they have been compiled.

(1) Business Week, News & Insights, April 30, 2007

Maine and the Uniform Mediation Act, Part I

2009-05-28T17:55:00.000-04:00

For the second time, the Maine Legislature has had an opportunity to consider the Uniform Mediation Act. The first consideration came back in 2004 when no other state had adopted the then-new statute. The Maine Legislature did not adopt it then, wanting the courts to deal with the issue under the Maine Rules of Evidence.

The courts have, for a number of years, considered various proposals in dealing with mediation confidentiality and privilege. More about that in an upcoming post.

This year, the driving force behind the adoption of the Uniform Mediation Act in Maine came from the Maine Association of Mediators, an organization with about 70 or so members who are both lawyer and non-lawyer mediators. They sponsored a bill to have certain portions of the UMA adopted in Maine. That bill is LD 1378.

The Joint Standing Committee on the Judiciary held hearings on this bill on May 12, 2009. A number of members of MAM and their supporters spoke forcefully in favor of it. Opposing the bill were members of the Supreme Judicial Court’s Advisory Committee on the Rules of Evidence (of which I am Chair) and the Maine Trial Lawyers Association. Attorney General Janet Mills sent a letter to the committee expressing her concerns about possible issues with criminal prosecution and consumer protection.

The result of that hearing was that the Judiciary Committee carried LD 1378 over until the next session which commences in January 2010. However, legislative committees hold working sessions throughout the interim between when they go out of their first session (in mid June) and when they come back with their second session in the new year. Therefore, action may be taken on L. D. 1378 by the Committee during this interim period.

Why the renewed interest in the UMA? It appears that the Supreme Judicial Court adopting a new Rule of Evidence, Rule 514, prompted this action. More about that in another post.