In small claims court successful agreements are often driven by what the judge has to say just before he sends the disputants to mediation. Savvy disputants take a measure of a judge and often, consciously or unconsciously, react to a judges admonitions.
In opening remarks it is important to differentiate between mediation and trial. In very basic form mediation is negotiation leading to mutual agreement or impasse while trial is evidence, the law, a judge’s verdict.
It is also important to stress, it’s about the money, and the mediator’s job is largely to get the disputants within a common range and to find a sum where agreement can take place. There are certainly other possible benefits from a mediated agreement but it’s not the trend.
As a major time saver it is important to stress the disputants don’t have to convince the mediator about who’s right and who’s wrong. In such a scenario presentations of evidence are usually reserved to satisfy a need to know by the opponent since there is no pre-trial discovery which, when seen, can turn the tide towards a mediated agreement.
In small claims cases opponents are often caught in very fixed positions because their whole mindset is on trial. Some never make the transition into negotiations of a mediated session. In such cases I look for an impact statement during my opening remarks. In my approach I stress the requirements to mediate are a willingness to negotiate and authority to reach agreement. If either party says no, it usually means just that, no.
Time is very limited for separate caucuses. When I use them it’s usually for a very specific purpose or sometimes it’s something in what a party says or even the body language. And, I’ve had a few occasions where I’ve been ready to shutdown a mediation, a party asks for a separate caucus. When this happens it usually opens up a channel towards agreement.
In many cases I feel if we had more time, agreement could be reached. At other times when a disputant is insistent on trial despite the weakness of their case it is hard to let go. In both cases I do let go and this is where the time limits become a helper. Not every case is going to result in agreement and there are times where very few agreements are reached.
When agreement is reached, memorialization in writing is very brief. If impasse results the disputants proceed directly to trial somewhat better prepared to present their case.
I’m always interested in what others in this field experience. Please share.