There is insufficient time to craft detailed agreements in small claims court mediations. Since the overwhelming number of agreements deal with money, most are fairly simple to draft and may include phrases like:
- Plaintiff agrees to accept $1600 to settle all claims arising out of this complaint
- Defendant agrees to pay Plaintiff $1600 by 24 July, 200_
- Plaintiff agrees to dismiss the case if payment is received by 24 July, 200_ .
Given their simplicity, why are agreement rates between disputants in small claims court mediations only between 40%-50%?
Without empirical data, just experience, agreement rates are not where I want them to be, disputants sticking to fixed positions, followed by, misunderstandings of the law, emotions (like animosity towards the other side), inability to negotiate, and sometimes bad advice from advisors, friends and even attorneys. Mediator skills are a factor.
As often mentioned in this blog, disputants coming to small claims mediations are generally in a “trial” mindset. Some are totally convinced their case is so solid they can’t lose. So why should they listen to anything their opponent has to say, except for total capitulation? An extreme example is, Plaintiffs without evidence at all, clinging to, “the judge will understand”.
Others come with a total lack of knowledge of the law. Even worse, at times, a disputant has a bizarre interpretation of the law or the role of the court. As examples, I’ve mentioned landlords and their misplaced conviction they are entitled to security deposits. Another example is a Plaintiff who wants a judge to order Defendant golf course to help them identify the guilty party who broke their window with a miss hit golf ball. Some unshakably believe morality is on their side, regardless of the evidence or the law, “it’s just not fair”, is often the final response muttered by morally outraged parties when a judges adverse decision is rendered.
As in other types of disputes emotions can, and do, run extremely high, totally blinding disputants to anything other than “I want the judge to decide”. Other times, disputants have, or come with someone, who acts as advisor or representative, encouraging belligerence.
At small claims court the attorneys usually allow their clients to speak for themselves. However, at times the plan is, don’t agree to anything as we’ll win at trial. "Absolute" positions require capitulation by their opponents in mediation, which is fairly rare.
Many factors influence pathways to agreement, here are two. One is, the judges instructions during the opening of a small claims court session can change disputants attitudes going into mediation. Another factor is my own opening statement to the disputants. Many disputants do not understand the difference between mediation and trial. Negotiation occurs in mediation while at trial, the law, evidence, and advocacy are the rule, with the judge often asking most of the questions and making all decisions. If they clearly understand, pathways to negotiations and thus agreement open up.
As for mediator skills, a key one, is the speed with which I get a grasp of the issues and obstacles to reaching agreement. For example, in an auto damage case, I need to understand whether there is an issue with liability, the extent of damages, or whether we are simply negotiating the cost of repairs. If either, or both, liability and extent of damages are at issue, I may allow a quick exchange of information before moving to the issue of cost of repair. As mentioned before, one key “fact” often influences the ability to get to agreement. Getting a sense of the case has to be followed by quick decisions on my part as to how to best proceed to negotiating the money involved. A loss of momentum towards a monetary solution is usually fatal to reaching agreement. As for style, we don't have any evidence one style is better than another.
If we’re running out of time, still negotiating, I weigh whether agreement is possible and keep the court clerk informed. If we’re working out the details of an agreement after time has run out we ask for, and get extra time.
Agreement is achievable if the parties are willing to negotiate and have decision making authority to reach a monetary agreement.