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Reality Tests or Mediator Suggestions in time Crunched Small Court Mediations – Benefits and Risks

by Leo Hura
August 2007

From the Small Claims Courts blog of Leo Hura.

Leo Hura

As a Mediator one of my goals is to mediate durable agreements with high client satisfaction. Reality tests and mediator suggestions are fascinating topics for discussion in any mediation setting. They can be extremely useful to disputants in reaching agreement. They also have the potential to be perceived as abusive in time constrained mediations. As small claims court mediations are severely time constrained, use of reality tests or mediator suggestions walk a fine line between benefit and the risk. A party may leave feeling pressured into accepting a term they would not have agreed to, but for the time crunch, and further blame the mediator for having brought up the issue in a reality test or mediator suggestion. The worst case scenario is, a conclusion by a party the mediator abused his power.

It is normal for parties and mediator to feel the pressure in “hard ball” negotiations at small claims court especially when a mediator announces, “soon the clerk will be knocking on the door asking us to return to the courtroom for trial”. If they want to settle but get stuck on one or more issues t he feeling of unease is palpable in one or both parties . I have to make a decision whether to use a reality test, make mediator suggestions, or let the mediation go into impasse as time runs out. The consequences for one or both parties are to proceed to trial they may not want. These two factors, time and not wanting to go to trial, create both an opportunity and worry for me, as mediator, in utilizing reality tests or mediator suggestions. An example mediation scenario, followed by a few specific examples follow.

The dispute, between two pro se opponents, is over money owed for a shared leased car returned to the leasing company with damages. One paid the money owed while the other failed to contribute to the money due. In small claims court the judge asks disputants to briefly describe their case and whether Defendant disputes the Plaintiffs claim. The Defendant disputes the claim. The judge explains mediation is mandatory, they are better off reaching agreement there, and if no agreement is reached, an evidence based trial will follow this day. The judge refers the disputants to me, as mediator. I have twenty to thirty minutes to either get to Agreement or send them back to court for trial. I explain the process and my role. The disputants signal they understand they are in a mediation, a negotiation, which is very different from the court room, evidentiary hearing. I advise them the primary objective of this mediation is to get them within a common range to achieve a monetary agreement. The disputants indicate a willingness to negotiate and we begin. Plaintiff starts out with a demand for $3499. Defendant counters with $1500, hardly in range of each other. Emotions kick in. Negotiations begin to stall over issues. Time is running down. I signal to the parties time is getting preciously short. Is this the time for reality checks and/or mediator suggestions? Or, do I just let it go, declare impasse, and let them resolve the issues at trial? I decide to utilize either or both. A few examples follow. The tables below are divided into two parts:

· Part one deals with reality testing issues which may arise in the final moments of small claims mediation in the context of the alternative of going to trial. In column two I provide potential wording of a reality testing with a question mark? Is this the right thing to do and wording to use?

· Part two deals with mediator suggestions associated with facilitating agreement. The last example is the use of the “hammer”, suggesting impasse.

Part 1: Reality Testing Parties

Acceptable Reality Check from a Mediator?

A party has no estimates for parts of the amounts claimed or counterclaimed. The parties are separated by several hundred dollars in their negotiations towards an Agreement

Have you considered what the judge will do without estimates for your claims?

Claim/counterclaim contains an estimate for their own time and effort in pursuing the case

Do you know whether small claims court normally allows a judgment to include compensation for personal costs?

Claim/counterclaim contains attorney fees

Do you know whether small claims court awards attorney fees?

Claim/counterclaim contains a request for punitive damages

Do you know whether small claims court awards punitive damages?

I want to ask the judge about …. (heard more often than I would surmise)

Do you know whether a judge can offer you legal advice? I cannot.

What do you as mediator think? What’s your opinion?

I cannot offer opinions nor legal advice

Part 2 – Moving the Parties to Agreement

Acceptable Mediator Suggestions?

Both sides are bogged down in fixed positions with neither seeing any other alternatives

Would you be willing to expand our alternatives to include (list them myself )

Parties are stuck on a term of an Agreement

May I suggest we add (give them a suggested term for reaching agreement)

After a long pause with no response either way to a term proposed by the other side or mediator suggestion

I believe we’re in impasse and I’ll have to shut down this mediation so you can proceed to trial … followed by a balking party’s response “Ok I’ll agree to that term even though I don’t like it.”

Time, coupled with a desire to reach Agreement create significant pressure on small claims court disputants in pre-trial mediation. As the time winds down we reach a juncture where reality tests and mediator suggestions can and do make a difference. The risk is, a party walking away feeling dissatisfied or even abused, blaming a mediator. Each of us has to make a choice whether or not to use reality testing or mediator suggestions in this venue. I do. I don’t have any hard or fast rules on their use nor the form of delivery. Their use and the way they are brought forward are case and disputant dependant, requiring significant judgment calls, to successfully walk the fine line between benefit and risk of being blamed for a “bad” agreement. It would be nice to get into BATNA’s, Plan B’s, decision analysis, risk mitigation, but I find those techniques difficult to utilize in small claims court scenarios lasting 20 to 30 minutes. Ultimately, whether or not our reality tests or mediator suggestions are effective, is a question which only disputants can answer. I wish I had data.

Biography


Leo Hura, Mediator -JD - Facilitator -Conflict Resolution Training Program Developer practices mediation out of Honolulu Hawaii.  An experienced mediator Leo has turned his atttention to developing training programs designed to inform, educate, and promote the use of peaceful means for avoiding, preventing, resolving conflict in business with business, business with client, and interpersonal relationships.

Leo writes extensively on his blogs, has written two booklets for clients on mediatin and small claims court claims, and numerous articels about the practice and use of colalborative means to resolve conflict. 

http://email.mediate.com/blogs/mediatewithkh



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