Defendants in small claims cases vary from, the shell shocked to the defiant, “Plaintiff does not have a case”. Emotions can run high. At times belligerence is palpable. My favorite, are landlords who have either not read the landlord tenant code or who view themselves covered by inserting a forfeiture clause in their lease agreements and are finally challenged by a tenant in a complaint. As I will not offer them advice I ask the question, “have you read the code and do you understand how it applies to your case?”. Most in this defiant category mumble a response, which sounds like an unconvincing, “yes”.
There used to be a time, early on, when I believed and practiced small claims court mediation on broad principles of mediation, get them to listen, talk, agree to collaborate, problem solve, reach agreement, with the result we ran out of time. Disputants were forced to proceed to trial without ever getting into discussions over the focus, the money judgment or dismissal the court is empowered to reach.
To a degree the Defendant is in the “hot seat”, she has to give something up to reach agreement. Somehow it is really difficult for us, as humans to give up possession of something, in this case dollars.
So what do Defendant’s do? They outright deny and challenge the Plaintiff to go to trial. They capitulate and agree to the demands of the Plaintiff. They negotiate. I’d like to share a few thoughts on each of these states of Defendant mindsets.
When a Defendant offers a downright denial of the complaint I may ask for a separate session so I can ask a few questions. In the opening paragraph I offered an example of a question asked of landlords. I may also ask questions about what they think the judge will do with the evidence Plaintiff has presented and what evidence they will use to counter Plaintiff’s claims. I don’t judge, advise, offer counterarguments to what Defendant says. My goal is for Defendant to have an opportunity to weigh his position against the weight of Plaintiff’s case in as objective a manner as possible. If Defendant is still adamant in an outright denial of Plaintiff’s case, I may just pause for a small but significant amount of time for reflection, a few deep breaths, and indicate I will relay the denial to Plaintiff. At times the pause gives the Defendant a chance to process what we just went over and perhaps reconsider their position.
On the other hand, capitulation to Plaintiff, most often comes in private session. So, how do I, as mediator, ascertain there is a desire to capitulate? At times, and based on experience a case can be so hopeless it begs for a quick agreement. Everyone in the room can sense it based on what is revealed in the joint session. The judge’s remarks during review of the case before mediation can also be a catalyst. At the next level there can be overt signals emanating from Defendant ranging from their body language to a request for a separate session. In such cases Defendants can state they agree to capitulate or they might need just the slightest nudge towards capitulation. They want me to hear their concerns, proffer questions, and even ask for opinions. I won’t give opinions or offer legal advice. I will select from a variety of available techniques to help the Defendant answer their own question, which they usually do.
The third state is a Defendant willing to negotiate, reflected in positions ranging from slight concession, a few nominal dollars, to considering Plaintiff’s demands as valid warranting consideration, discounted by some factor, including the famous, “let’s split the difference”, or another favorite, “ my authority is limited to $x, anything else will require higher authorization”. In some cases Defendants view the relationship as important, offering concessions as a means of safeguarding a relationship.
Offers by either side to “split the difference” sometimes works. I don’t offer it as a mediator suggestion except as a last step when the parties are within a very close negotiating range. I find my offering it, is often a “turn off” or viewed as a somewhat flippant suggestion, coming from me.
Assuming they do achieve common range of dollars in a negotiation, the action becomes fast and furious, accelerating to a mutually acceptable number. Once we reach this stage the trend is towards agreement.
If a Defendant feels they are giving too much away or has a “what do I have to lose if we go to trial” moment they can break off negotiations, and do go to trial. In these types of situations they need a non-dollar reason to Agree to a negotiated settlement.
As for the shell shocked, who capitulate, they walk away very dissatisfied and disillusioned. I learned not to say things like “it’s sometimes tough to be a landlady” when the landlady agrees to return a security deposit. It only makes things worse.