From the Small Claims Courts blog of Leo Hura.
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
Given their simplicity, why are
agreement rates between disputants in small claims court mediations only between
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
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
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
Agreement is achievable if the
parties are willing to negotiate and have decision making authority to reach a
Carrie Menkel-Meadow talks about the value of mediation including social justice cases. Some of these cases need litigation but in most cases more can be accomplished in mediation.By Carrie J. Menkel-Meadow