Take the following scenario in small claims court mediation, its obvious one side does not have a case, stubbornly holding on to a position, either oblivious to the predicament, or just not caring. The other side knows they hold a “winning” hand. Based on my experience with similar cases I agree the outcome at trial is preordained.
What am I to do? Attempt to move the parties into negotiation? Just declare “No Agreement” and proceed to trial. Perhaps, I should offer a strongly suggestive reality check to convey the message to the doomed party. To some, the answer may be “yes”. To others this is anathema, a perversion of mediation.
In these mediations I remind parties, and myself, what judges advise, then, since I truly believe a negotiated solution is qualitatively better then a judgment, I probe for an unstated “interest” which might be satisfied through a negotiated agreement.
In opening remarks, judges advise disputants about risks parties take in a trial where the hearing is evidentiary, judges actively ask questions, determine what laws apply and how, and make non-appealable decisions. They caution disputants, a judge’s interpretation of evidence and the law may differ, with only one party winning, while the other loses. Neither may be happy with the results.
Choosing the right time to repeat this advice is often very helpful. Coming from me, these statements have to ring as “true”, not an opinion one way or another in this case. In practice, I have seen it time and again, Judges render decisions which surprise parties. This is in no way meant to be pejorative, it just happens.
Insofar as disputants are concerned there are parties who have winner take all personalities, stick to them, and prevail at trial. The tenant who did not receive notice his security deposit was being withheld for damages to an apartment sticks to his guns, gets his security deposit back, only to be successfully sued by a savvy landlord in a subsequent action by Defendant landlord for the damages tenant created. We may know attorneys, who advocate to win, and do, seemingly without much concern for “interests”. The evidence and law are on their side. Fortunately, for mediators there are those who are willing to consider “give me a reason to negotiate I have not considered. I will at least listen”. Sounds unachievable in a time constrained mediation. To do so, they need a “conduit” to negotiation. As an aside, I would have used the word “segway”. I can’t find a single reference to this word, other than to the machine, in either dictionaries or thesaurus so conduit will have to do.
What interest may be involved in the case and what are examples of unstated interests? Plaintiff is suing a governmental entity not subject to small claims court jurisdiction without consent because there is no appeal process. Perhaps the interest being protected is safeguarding governmental immunity and it’s right to appeal. From Defendants point of view, open and shut case, move for and get dismissal, right? Not always. There are situations where government, in a wish to avoid an injustice may, with the right “conduit”, agree to negotiate a compensation offer to an injured party. There are the businesses, as either Plaintiffs or Defendants, who value customers or clients and may wish to maintain a relationship. They may be miffed by the opponent’s behavior and are trying to protect their staff from abusive behavior. There are condo associations which will agree to an accommodation with an upset owner even though she does not have a case. In twenty minutes how in the world do I get to that? I wish I could claim I can do it in every case of this nature, I can’t. Perhaps there are other techniques mediators in like situations apply. II would be good to know those as well.
When parties walk into mediation they size up the mediator. Since the presumptively losing party is not backing off their demand, a “winning party” asks, is the mediator going to be able to move the other side from their losing demand because, if not, it’s a waste of time? As an aside, in the examples I used above, many times, “representatives” have been sent to court under an assumption “this is a no-brainer” case. If there is a problem or an opportunity, they need to call their bosses. On the reps part, making a call is a risk. Reps also need to be assured they are not being manipulated. In small claims court mediations, first impressions are the only impressions parties’ form of a mediator. Either you hook or lose them.
If parties are hooked, next is, unearthing unstated interests. The assumption is, in each type of case, there is more than one interest a party may wish to protect. Since time, ability, and space preclude full explanation, an attempt follows to demonstrate searching for unstated interests through the use of separate caucuses and probing, versus open ended questions, to get into negotiations within the time constraints of small claims court.
I ask parties to exchange their interest based positions through a simple recitation of, for the Plaintiff, how much are you asking for and why? I hope for an answer that runs something like, “$550 for a dent on my pizza delivery company cars front hood caused by Defendants errant throw of a Frisbee plus court costs.” I ask Defendant whether they are denying the claim and why? Being fiercely competitive, these “Ultimates” answer “our Frisbee could not have caused the damage claimed and we’re not paying a cent!” The Plaintiff has photos, two witnesses who will testify they saw the Defendants throw the Frisbee, the impact, and the resulting dent. The $550 is based on the lowest of three estimates. Defendant’s position is seemingly untenable, but yet seemingly unmovable. Open and shut case, no?
After allowing Defendant to view photos and estimates, I would immediately opt for a separate caucus with Defendant. I could say, “Are you nuts? The other side is going to nail you. You’d better offer something, and hope for the best”. Or, articulate some gentler form, meaning the same thing. But that’s not what I’m looking for. I’m searching for an unstated interest, other than the general denial of liability to get into a negotiation. If I had the time, I could ask open ended questions. However, the clock is against us. Instead I would turn to probing questions. An example might be “Is your team insured?” “No.” “If you have to pay where would the money come from?” “Our pockets. You have to understand we live from pay-check to pay-check. This is where the problem lies.” The opening is there.
From the Plaintiff, pizza delivery company, I might risk, “to whom were you delivering the pizza?” and I might get, “to the other team”. My follow up would be?
In the right situations, separate caucuses and probing questions have their place in twenty minute mediations.