Although in the past I have written extensively about mandatory mediation in small claims court it’s important to enough people to write about it in this tab.

Recently we had an inquiry from a court which offers validation as an option and wanted to inquire what we would encorage a presiding judge to say to encourage people to take the mediation option. That's so important! What a judge says has tremendous impact. So for those of you on the judiciary side take note and do a good job in this area. And, for those of you appearing in small claims court listen carefully to the message because as the judge says - should you not opt for mediation you may not like the judges interpretation of the law and/or his judgment of your case. Give mediation a chance!

Small claims court is where you and I go to get redress of a failed contract, landlord tenant, accident claims, and a myriad of other situations involving a relatively small amount of money. The first question to ask is, why go there at all. If you and your opponent cannot resolve the issue in direct negotiation suggest to your opponent to agree to go to your community mediation center for voluntary mediation. Why? Because, small claims court judges most likely require mediation any way but the difference is that in small claims court you’ll have a lot less time than at your community mediation center. In addition the mediators you use in small claims court might quite likely be from the community mediation center. Compare the costs.

Whether you go to the community center or wind up in mandatory mediation at small claims court, remember it’s about the money (although at the community mediation center you may get a lot more time to vent emotions, save face, or seek out alternatives to money damages).

Although evidentiary rules are somewhat relaxed in small claims court the evidence you present still has to meet basic requirements. For example where estimates are required bring estimates from independent officials (not your own) and it’s advisable to bring more than one. And remember if you don’t bring your estimates and your opponent does, guess who’s estimate will be used by a judge. In mediation you may be asked or may want to share your evidence with your opponent.

The mediation process at small claims court involves the give and take of competitive or distributive bargaining. You ask for x and your opponent offers y. Know when to hold them and know when to fold them is as good a rule in mediation as it is in a card game.

The mediator has a very limited amount of time to explain the mediation process so listen to what the judge has to say. They do a good job of describing why parties should mediate (your interpretation or weight of evidence or interpretation of the law may be different than the judges – but the judge decides and once decided there is no appeal).

Consider the likelihood of payment. If you win at small claims court you get a judgment and still have to collect. In mediation you may directly get a check even cash or payment terms can specify a short period of time within payment is due (failure to pay resulting in a new claim). Since both of you sign an agreement this seems to increase the likelihood of payment. So, giving a little on demands can raise the likelihood of payment.

Remember that what happens in mediation is protected under state law or judicial rules of evidence meaning that what’s said in mediation. Why? To allow for freer sharing of information.

Remember that a key to success in this type of mediation is being prepared to negotiate (e.g. where do you start, what’s your negotiating price, what’s your walk away price, and what’s your best alternative to a negotiated agreement).

For more information about mandatory mediation in small claims court check my blog at http://email.mediate.com/blogs/mediatewithkh/ where there’s a wealth of discussion about this topic.

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