Going to Court? ADR May Be Better, Cheaper
(from Maine Townsman, May 1996)
By Julian Orr

Many municipalities are familiar with the use of mediation in labor negotiations but how many have thought of using it, or some other form of ADR (Alternative Dispute Resolution), for other conflicts. Selectmen, council members, managers, administrative assistants and all other municipal officials deal with conflict all the time: conflicts with staff and employees, conflicts between employees, conflicts with the public, conflicts between segments of the public, etc.

When unresolved conflicts become serious they may jeopardize the municipal official's office or job, polarize the organization or the community, or result in a bitter and expensive court battle. It might be useful to consider the use of an experienced mediator to help resolve the conflict before it gets out of hand.

One of the most important things that a mediator does is to provide a time and place for the parties to sit down around the table, discuss their needs and interests, and create possible solutions. It is informal and inexpensive. The mediator tries to help the parties see their differences as a joint problem to be resolved by working together.

In almost all such conflicts, there is going to be an ongoing relationship between the parties. A mediated solution will help to maintain or improve that relationship. An adversarial court battle is likely to leave a lasting enmity because of the win-lose nature of the outcome. Compliance with a mediated outcome is likely to be better. We are all more willing to do something we have agreed to do than to do something we are ordered to do.

A new area of mediation that will very likely involve many municipalities has been opened by the adoption and signature by the governor of L.D. 1629, which establishes a land use mediation program. Under the provisions of this new law, any landowner who has suffered significant harm as a result of a governmental action regulating land use may apply for mediation. The cost to the landowner is modest: $175 for the first four hours of mediation. It is a very inexpensive alternative to litigation. The law requires the Court Mediation Service to provide the mediator.

The law states that the mediator shall include in the mediation process any person necessary for effective mediation, including persons representing municipal, county or state agencies, abutters, interveners, and others. It specifically states that a municipality is not required to participate. However, it seems highly unlikely that a municipality would forego this opportunity for a virtually no-cost solution to a conflict when the alternative may well be an expensive court battle.

Another potential area for the use of mediation by municipalities is in conflicts with the Department of Environmental Protection. L.D. 215, adopted last year, provides for mediation when the DEP issues a consent agreement for a violation under Rule 80K, Land Use Violations. If the alleged violator disagrees, and the DEP elects to bring an enforcement action in District Court, the Court shall refer the parties to mediation if either party requests it. The mediation is to be provided by the Court Mediation Service. To date this process has been little used and there may not be many instances where a DEP land use citation and complaint against a municipality gets as far as a District Court action. It is, however, an option for a low cost solution should the occasion arise.

It should be remembered that mediation, or other forms of alternative dispute resolution, may be useful in almost any kind of conflict, not just in the areas where the law provides for the use of the Court Mediation Service. Even if the attempt to reach a settlement is unsuccessful, the process may result in a clarification and narrowing of the issues and thereby reduce the time and cost of a court action.

The other forms of alternative dispute resolution are arbitration, where the arbitrator hears both sides and then makes a decision, which may be binding or non-binding, and early neutral evaluation. In early neutral evaluation an experienced trial lawyer or judge reviews the arguments of both sides and then offers an opinion as to the likely outcome of a court action.

There are resources you can call on if you want to try the use of mediation. The Court Mediation Service has a roster of experienced mediators in every country. At present most of their official work is in the area of divorce actions and small claims. A number of them are experienced in other areas of mediation. Your nearest district court can give you the names of the Court Mediators for that court.

The Maine Association of Dispute Resolution Professionals (MADRP) maintains a roster of practicing mediators. A copy of the roster may be obtained from Ms. Shari Broder, P.O. Box 33, Brunswick 04011. Tel: 865-0062.