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Small Claims Mediation Programs

by Jessica Notini
September 2001 Jessica  Notini
General Benefits of Small Claims Mediation Programs

The benefits reported by small claims program administrators, parties and court personnel are as follows:

· Many cases settle, relieving the court docket and allowing Judges to give more time and attention to difficult cases. Judges appreciate the reduced workload and less hectic pace.

· When cases settle, parties are often more satisfied with solutions they created and tailored themselves

· Higher compliance rates with mediated solutions[1] and reduced rates of appeals

· Parties feel they are getting good service. They have really been heard and understood even if the case does not settle.

· Venting in mediation often helps de-escalate emotions if the casecontinues to court

· Rehearsal, organization of information and document exchange in mediation leads to more concise and cohesive, expedited case presentation in court

· Very good tool for training new mediators (especially if co-mediation with more experienced mediators is used)

Use of “Same-Day” and/or “Pre-hearing Model”

Some administrators, such as Nancy Heischman of the Santa Cruz, California program, feel that parties strongly prefer the same-day model because “whatever happens, they know they are finished at the end of the day.” However, it does not appear that most programs have made a deliberate choice of one model over the other but rather use the model that is most feasible given the resources of the mediation provider(s) and the court where services are to be provided. A number of programs offer both models. Both models have been very well received and successful in a number of locations,[2] although there do appear to be some differences in the ability to get cases to the table, the quality of the process and the settlement rates obtained.

A. Getting the Cases to the Table

It is easier to generate a substantial caseload if the mediators go to the parties rather than requesting that the parties come to them. Parties who would not try mediation if requested to attend a pre-hearing session will do so if it is convenient and seems to be part of the process on the day of the court hearing. There is more time and effort involved in generating “pre-hearing” mediation sessions, with a lower volume of cases brought to the table. However, there is some evidence that this is changing as public consciousness of mediation and its benefits increases, and some parties appreciate the opportunity to take part in a mediation on a schedule that does not require them to miss work. In one Oklahoma county, the court observed a drop in its caseload from 80 to 30 cases a month when it started offering information on a pre-hearing mediation service.

B. Quality of Process

Both mediators and program administrators experienced with the two different models report that the quality of process is lower for same-day cases. The conditions for mediation of these cases are not ideal. The mediators are usually operating under significant time pressures, the parties may be mentally prepared and pre-disposed to see the Judge, the physical facilities may be cramped and/or lacking in privacy, and unskilled mediators often respond to this kind of pressure by using more heavy-handed, evaluative tactics. While still recognized as valuable, some refer to these cases as “shotgun mediation.”

C. Settlement Rate Differences

Probably as a result of the differences in process quality, the settlement rates for same-day mediations are generally significantly lower. It seems to be common for settlement rates in same-day mediation programs to be approximately 50%[3], as compared to settlement rates that range from 75%-92%[4] for pre-hearing programs. However, it must be remembered that a 50% settlement rate is still quite helpful to the court, and many of these cases would not have reached mediation at all in the absence of the same-day service opportunity.

Training, Experience, Continuity of Mediators All program administrators interviewed suggested that it is particularly important to use skilled mediators for “same-day” mediations in small claims court, given the pressures under which these mediators must operate. It is recommended that these mediators be not only trained but experienced with the process or using a co-mediation model that pairs less experienced mediators with more experienced mediators.

Where programs have been in place for some time, administrators reported that there seems to be more continuity, and therefore greater experience accumulated over time, when community mediators are used. These mediators are often older and more settled in their lives, so that it is common for them to remain with the program for years. For example, in San Mateo, many of the mediators have been with the program for 5 – 10 years. Where programs have used law students, administrators observed that there was a natural turnover associated with their progression through and departure from law school, with most students serving no more than a year. They also noted a natural tendency for law students to conduct mediations with more focus on the law and application of more evaluative tactics. However, a highly respected program in Oklahoma reports that law student who are trained by the community program and serve under the auspices of that program perform very well, with no noticeable difference in the quality of their mediations.[5]

With respect to training, it is common to require at least 20-30 hours of training in mediation and other experiential learning. For example, in order to be certified to receive court referred cases in Virginia, mediators must complete (at minimum): 20 hours of process training, 4 hour introduction to the VA Judicial System, 2 observations of cases (or completion of an 8 hour role play course) and co-mediation of 3 cases (with a combined total of at least 5 hours spent in mediation) with a Certified Mentor mediator.

Case Selection or Screening Process

Case selection may be handled differently depending upon whether a “same-day” or “pre-hearing” model is used. In many programs, there is little or no screening of “same-day” cases. For example, in San Mateo, the only cases screened out of mediation are those that are “default” cases (e.g. one of the parties fails to appear). All “contested” cases (both parties present) are expected to go to mediation.

Where screening is used, it is generally a matter of eliminating certain cases from consideration for mediation rather than selecting those that might be more likely to benefit from mediation.[6] In pre-hearing programs, the factors that seem to be most common in this elimination process are simply (1) geographic proximity of the parties (i.e. too far from mediation location); and (2) ability to contact the parties (e.g. lack phone contact information for both).[7] Other factors cited by different administrators as potential reasons for elimination include: (1) auto-accident cases (parties focused on fault finding); (2) one party is large institutions seeking to recover on debt (but some exceptions noted here); (3) one party is a governmental agency; (4) a history of domestic violence; (5) cognitive ability to participate in mediation (which may be difficult to determine prior to mediation). However, the usefulness of some of these other factors seems debatable as some programs have reported good results, for example, with “past-due” account cases and large institutions.[8] In many cases, the approach of pre-hearing programs is to contact all parties possible (within the service area), and allow the participants to screen themselves out of mediation.

Promotion of Participation in Mediation

For same-day programs, it appears to be quite common for courts to inform the parties that they are expected to participate in mediation before the Judge will hear their case. This may be done before the date of the hearing, upon arrival, or both. The person making the presentation may be a Judge, bailiff, court clerk, or small claims program administrator as long as it is clear that the weight of the court is behind it. It is helpful if the Judges support the process by verifying compliance with the procedure. In the case of Santa Barbara, the Presiding Judge has also promulgated a Local Rule allowing judges to assign cases to mediation, although not all use it. In Minneapolis, Minnesota, the court encourages the use of mediation by reassuring parties that their case will get bumped to the head of the docket if they try the process and are unable to settle.

For pre-hearing programs, it is common to provide parties with a brochure or other information upon filing by the plaintiff and upon service to the defendant. The mediation service provider then follows up with any cases that have passed screening either by telephone, letter or both. In these programs, parties are not told that they are expected to participate in a pre-hearing mediation but are given information on the benefits of the service and encouraged to consider it.[9] As noted earlier, many program providers are noticing a significant increase in unsolicited inquiries into the mediation process based upon greater public awareness of and interest in mediation.

Coordination with Court Calendar

None of the program administrators interviewed reported problems in coordination with the court calendar, although all reported that this was a significant concern of the courts and that they were very sensitive to this concern. For example, the Santa Barbara pre-hearing program avoids taking on cases, despite party interest, if the hearing date is too close (2-3 days away). Administrators suggested that courts become more willing to provide continuances to support the mediation program as court personnel become more comfortable with the program and develop relationships with the provider. These continuances do not appear to create problems for the court as long as the time periods are short (commonly 30 days) and the process is clearly defined.

When cases are settled in mediation, most programs have an arrangement similar to the one followed by the Santa Cruz, California program. There, the mediated agreement form allows for the case to be taken off calendar pending fulfillment of the agreement. If the defendant defaults, the plaintiff can petition to have the agreement converted to a judgment. Defendants benefit from the fact that a mediated settlement, unlike a judgment, results in no damage to credit records.

Court and Party Satisfaction

Administrators for the existing programs interviewed reported substantial court satisfaction with the mediation programs, regardless of whether a pre-hearing or same-day model was used. However, it should be noted that two administrators reported that previous same-day programs associated with their courts had been discontinued due to problems that were not clearly identified or known to these administrators. Some strong programs experienced difficulties when they were getting established, but all have seen increasing levels of support from court personnel over time as the benefits of the program become clear and good working relationships are developed.

The rates reported for party satisfaction consistently seem to exceed 90%, including parties reporting on cases which did not settle as a result of mediation. For example, from July 1999 – June 2000 in San Mateo, 146 cases voluntarily participated in mediation and surveys were received from parties in 114 of these cases. In these surveys, 91% of participants said the mediation was “a positive experience,” 100% said the mediator was “fair and impartial,” 98% “would use mediation again,” and 99% “would recommend mediation to others.” Of the cases mediated, 48% were successfully resolved. In Oklahoma, the courts follow up on all cases where agreement is reached and report a 90% compliance rate and better than 90% satisfaction rate.



[1] For example, Daniel Taggart reports that very few cases ending in a mediated agreement come back to court for enforcement (as opposed to the interrogatory and garnishment proceedings which frequently follow a judgment) in the Arlington and Fairfax, Virginia program. Timothy Hedeen of Minnesota reports that less than half of small claims judgments are paid in a timely manner, while mediated agreements are around 80%--see McEwen and Maiman's study cited in http://www.ncjrs.org/txtfiles/165698.txt .

[2] But note that Jonathan Krutz of Nebraska reports that a same-day program in Omaha was dropped, to be replaced with a pre-hearing model, based on recognition that the “artificial time constraints of day-of-court mediation are not conducive to an interest-based problem-solving approach.” Similarly, a same-day service was discontinued in one of the California courts.

[3] Examples of rates or same-day programs: San Mateo reports 48% settlement rate, Santa Barbara reports approximately 50%, Hawaii ADR Center 10 year retrospective reports decision to extend small claims pilot program indefinitely, finding “over 50%” of cases settled using same-day model, Sue Tate of Oklahoma reports approximately 60%. The rates in the Arlington and Fairfax programs in Virginia appear to be similar overall, but the Fairfax court has rates closer to 75% for certain types of cases (consumer/merchant and contract debt) and the program in Santa Cruz California reports 80-85% settlement rate.

[4] Examples of rates for pre-hearing programs: Santa Clara reports approximately 90% settlement rate, Southeast Nebraska mediation center reports 75% settlement rate, not including cases resolved through center without mediation, Oklahoma reports approximately 75%.

[5] Oklahoma law requires all court-related mediation services to be provided by public entities. In Oklahoma City, the Law School is the sponsor of the community program and uses both law students and outside community mediators.

[6] But in Virginia, some judges emphasize that if there is any kind of relationship between the parties (relatives, consumer/merchant, landlord/tenant, neighbors, etc.) they should try mediation.

[7] Interestingly, the Santa Cruz screening form is much more extensive including the following factors: Unwilling to mediate, Unwilling to negotiate, Not authorized to negotiate, No agreement re: basic facts, Defendant claims no liability, Defendant's best offer has been refused by plaintiff, Settlement hinges on a legal interpretation, "Matter of principle" for plaintiff, Too angry, No trust, Too complex (the last three due to time constraints of on-site mediation). It would be helpful to explore whether this more extensive screening is related to the unusually high settlement rate (80-85%) for the Santa Cruz same-day program.

[8] Both the Southeast Nebraska Mediation Center and the Santa Clara program reported success with these cases.

[9] The Southeast Nebraska Mediation Center reports that out of 419 cases referred to mediation from July 1998 to June 1999, 55 met in mediation and 11 others were resolved through contact with the center. Similarly, the Santa Clara program indicated that, out of 471 cases referred to mediation from January – March 2001, 77 went to mediation or conciliation.

Biography


Jessica Notini has been an attorney since 1989 and a mediator since 1994. She is an Adjunct Professor of Mediation at Golden Gate University, Administrative Coordinator for the California Dispute Resolution Institute and President of the Northern California Mediation Association. She graduated magna cum laude from the University of Michigan Law School and has a B.A. in Psychology from Wesleyan University. She is fluent in Spanish and conducts mediation trainings internationally in Peru, Ecuador and Mexico. She also has served as a consultant to the Congress of Peru on the development of new legislation requiring mediation in most civil cases.


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Website: www.ncmc-mediate.org

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