The judiciary of Maine stands out as one of the earliest advocates of mediation for residents of its state.
Typically, when people think of divorce, they tend to think of heated issues being resolved over a long period of time in court. The truth, however, is that more and more divorces are handled outside of court.
In some cases, couples can resolve all aspects of their divorce – such as property division, child custody, visitation, and so forth – independently, and may not need any additional assistance. In the majority of cases, couples require either a mediator or a judge to resolve their disputes.
In this post, we will provide a thorough discussion of the mediation process in Maine.
As we will see, mediation can provide substantial benefits in many cases. The goal of mediation is essentially identical to the litigation process: the resolution of all the unresolved issues of the divorce. But mediation attempts to accomplish this goal in a very different manner.
We will then discuss the procedures of mediation, the benefits of having a private lawyer, and the process of submitting results to the court.
Then, we will follow up with a thorough examination of the alleged advantages of mediation, and the cost structure. Importantly, the cost projections discussed here should be taken as a general range, and should not be used to estimate the costs in a particular case.
Although the information contained here should be sufficient to give a sense of the process of mediation, readers will not come away with all possible questions answered. Our aim is to provide a thorough treatment, but specific questions should be followed up with by a family attorney with The Maine Divorce Group directly.
Mediation is becoming a more and more common way for couples to resolve their issues and settle their divorce. The goal of mediation is essentially identical as the goal of litigation: the resolution of all aspects of the divorce.
Mediation differs from litigation in a number of key respects, however. The ways in which mediation differs are often cited as the reasons why couples prefer this process over traditional litigation. As we will discuss in-depth, mediation can be an effective way to resolve disputes in a more relaxed atmosphere; what’s more, mediation can be a cost-beneficial process compared to litigation as well.
Under current Maine law, if a couple has minor children, then they will be required to engage in mediation if they are not able to reach an independent agreement on all aspects of their divorce.
Initially, couples will be given the opportunity to independently determine the various aspects of their case.
They can be assisted in their efforts by a family law magistrate or a judge. But, if they cannot reach an agreement, and they have minor children, they will be ordered to proceed with mediation.
Mediation may still be ordered by a magistrate or judge even if the couple doesn’t have minor children, but mediation will not be mandatory in these cases.
As mentioned, mediation differs from litigation in many ways. In mediation, couples have a single mediator who is appointed to facilitate the negotiations between the parties. The mediator will be appointed by the court unless couples elect to hire a private mediator.
Mediation lacks the rules of evidence and other aspects of courtroom procedure which characterize litigation. Usually, the two parties stay in separate rooms, and the mediator takes turns going back and forth between the parties, facilitating the negotiation on whatever issues are unresolved.
The mediator doesn’t give any legal advice, but merely attempts to assist the parties achieve a compromise whenever possible.
In some cases, mediation takes place in a single room. In any case, the mediator will always function as an impartial facilitator. In cases where there is a court appointed mediator involved, mediation sessions generally last about 2 hours each session, but could stretch out to as long as 4 hours for a session. However, in cases where there are significant and complex issues, and where there is a long standing history of animosity between the parties, private mediation might be the best solution as the mediator can set aside a period of days instead of just hours for the mediation.
There is no standard or “average” length of time for mediation; some couples require only a single session to reach an agreement. Others need several sessions and then realize that they won’t be able to reach a consensus at all.
At that point, any unresolved issues will go before the court for a final hearing (trial) before a single judge.
Predictably, the greater the complexity, the more time tends to be needed. This is true at least in the majority of cases. Suppose a couple goes to mediation and has 4 children, several millions of dollars of liquid and non-liquid assets, and a history of heated friction.
Clearly, such a scenario is going to require significant amounts of time and energy to resolve. They will take considerable time to resolve child custody and visitation, property division, spousal maintenance, and so forth. Of course, everything is context dependent, and so there are some complex cases which can be resolved swiftly.
But as a general rule, couples should anticipate that more complexity will require more time to mediate successfully.
As mentioned, the mediator’s role is to facilitate negotiations in an impartial manner; at no point will the mediator provide legal advice to either of the parties. This is true even if one or both of the parties makes a specific request for such advice.
This is why many parties prefer to have a private lawyer with them during the mediation process. If a party wishes to do so, he or she can procure a lawyer to provide counsel throughout mediation.
The lawyer can be present during the entire process; if a party wishes, he or she can interact almost entirely with his or her lawyer, rather than the mediator. In addition to the legal advice, many parties prefer to have this additional layer of advocacy and support throughout mediation.
This support will come with an additional cost, however. Expectedly, the court will not provide parties with a lawyer automatically, and so parties have to pay out-of-pocket for a lawyer during mediation. This can raise the costs of mediation substantially, as will see.
Mediators can assist the parties in developing agreements on all aspects of their divorce. However, this doesn’t mean that the divorce will be finalized after mediation is complete.
If a divorcing couple manages to reach agreements on every point – child custody, visitation, asset division, maintenance, and so forth – then the mediator will submit the results to the court.
At that point a Maine judge will review the results and then give a final approval before the divorce becomes effective.
Maine judges have the ability to review agreements and then make adjustments based on how those agreements fit with certain principles.
For instance, in Maine law, child custody and visitation schedules are developed in accordance with the “best interests of the child” standard. Whatever the specifics of a given child custody agreement or visitation schedule, it must be consistent with this standard.
If a couple develops an agreement which is inconsistent with this standard, then a judge can overturn it, even if it were developed with the assistance of a mediator.
The system in Maine attempts to allow people considerable leeway in developing their own agreements; but this leeway doesn’t extend infinitely, and judges can intervene and adjust agreements whenever necessary.
The benefits of mediation are clear. If we compare mediation to the traditional litigation process, we can see at least two major advantages.
One advantage is cost.
We will try to breakdown the cost structure in a bit of detail in the next section. Simply put, mediation is usually the much better option compared to litigation from a financial perspective. If you don’t acquire your own private attorney, then the primary cost is the mediator’s hourly fee.
There are other incidental costs, such as case management fees, records fees, and so forth, but the main cost is the mediator’s fee. Although mediators tend to charge fairly high hourly rates, these rates tend to be lower compared to private representation in the litigation process.
The other main advantage is reduced stress.
This advantage is less tangible, but just as important. In fact, many people consider this to be the number one advantage of mediation.
The mediation procedure itself is structured to reduce the stress of the parties involved. As mentioned, the parties usually don’t communicate with each other directly, but solely with the mediator. However, in some instances a mediator will get the parties together so that they can hear each other’s perspective. This can be an effective tactic that brings both parties to the negotiation table and often results in one or both parties “feeling heard”, which results in the removal of a significant roadblock to the negotiations.
The mediator takes the lead in facilitating negotiations, and allows each party to state his or her position. This produces an environment which is dramatically less stressful than the courtroom.
Mediation doesn’t involve rules of evidence, and lacks much of the formality of litigation. What’s more, the parties have the ability to schedule their mediation sessions independently; mediation dates are not assigned like most court dates, and so parties can plan to harmonize mediation with their preexisting schedules.
When thinking about the costs of mediation, it may be helpful to break things down into separate categories. There are 3 basic cost categories to consider when thinking about the costs of mediation: mediator costs, attorney costs, and incidental costs.
Estimating the costs of any given mediation can be difficult. One reason for this is because there are unknown variables.
For instance, a major contributor to the overall cost is how long the mediation takes. But, in most cases, there is no way to predict the length with great accuracy at the outset.
This means that any given mediation can be well below, or well above, the standard range in terms of costs
As mentioned, mediator’s have an hourly rate. Most mediators in Maine will charge between $150 to $450 per hour, although some may be higher.
A typical mediation session will last several hours, and most divorces require multiple sessions. In many cases, it’s not uncommon for parties to incur a mediator fee of $2,000 to $3,000 when everything is complete.
Again, there is wide variance here, and so a given mediator fee may be outside of this range.
In many cases, if you hire a private attorney to assist with mediation, the attorney’s fee can be as much or exceed the mediator’s fee. Attorneys usually charge an hourly rate for counsel during mediation, and so the final bill will ultimately depend on how the mediation lasts, just as is the case with mediators.
In a more or less typical scenario, it’s not uncommon to incur an attorney fee of $3,000.00 – $4,000.00 or more.
The incidental costs can be even more challenging to estimate because these costs are not always the same in all cases.
And the reason for this is because certain incidental costs are optional, or may be waived by certain mediators.
For instance, many mediators will charge an initial fee to get started on a case; this fee covers all the preparatory work which is involved with setting up mediation.
However, not all mediators have such a charge. Then, many mediators charge extra for a written record of the mediation sessions; such records are optional, and so this fee isn’t incurred in every case. What’s more, mediators usually charge extra whenever any official court documents are filed on behalf of the parties.
There may be other incidental fees as well, everything depends on the particular mediator who handles the case. Altogether, incidental costs usually range between $1,000 to $1,500.
Mediation holds a special place in Maine family law. Most legal experts, magistrates, and judges would concur that this is for the better.
The value proposition of mediation is very clear. Mediation allows parties to negotiate the various issues of their divorce in a relatively stress-free environment.
The parties can schedule mediation sessions which harmonize with their preexisting professional and personal routines. The cost tends to be considerably less than the cost of traditional litigation.
Of course, mediation may not work for all parties. Some parties will need the formalities and other provisions of the litigation process. But for many, mediation can be a viable alternative which offers multiple advantages.
The attorneys at The Maine Divorce Group understand how emotional and complex the divorce process can be and we are here to help.
Call to speak with a member of our team today, who can discuss your case and set up a consultation with one of our attorneys.
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