In a multi-hour mediation session my co-mediator reminded me “we are not fact finders” reflected by his refusal to look at documents proffered as part of one party’s case. Personally, I accept at least a look at documents with short descriptions of a party’s perspective on what’s relevant to a negotiating position they may be trying to articulate.
Although I can’t spend a lot of time on “evidence” in small claims court I encourage the exchange of relevant documents each party is planning to introduce to advocate their case. Even the briefest discussion of evidence encourages the other party to “listen”, reflect, and hopefully consider, whether they should or should not negotiate during pre-trial mediation.
One reason I spend some very valuable time on evidence is that unless the other party is represented by an attorney or familiar with subpoenas there has been no discovery. Particularly relevant to most of my cases are contracts and estimates.
Realizing there are reduced requirements on the evidentiary rules in small claims court there isn’t a need to dwell on issues like “foundation” which would be an issue in a trial outside of small claims court.
One “fact” can turn a negotiation. For example, in a case regarding a financial institutions liability to a client, there was a question whether a clients liability for a cashiers check, subsequently determined to be fraudulent, ended when tendered and paid out or had the bank reserved the right to confirm the transaction? The cashiers check proved to be fraudulent and the bank charged the clients account with a demand for the remaining balance. A quick check of the banks, client contract, disclosed a difference of opinion as to which set of conditions and clauses applied. The disclosure gave the parties a chance to reflect and reconsider. Some react to disclosures others do not. After all it is still their choice.
As for estimates or receipts, when required, are critical, not just to trial, but also in mediation. No Defendant wants to be overcharged. No Plaintiff wants to come out less than whole. No judge wants to be manipulated as to damages claimed.
In one case the Plaintiff presented estimates for repair which failed to include their own insurance companies estimate. The difference in cost between the insured’s own estimate and his company’s were significant. His own insurer’s appraisal was much, much lower. In this case Defendant had a copy of Plaintiff’s insurance company’s estimate. I simply asked the question what Plaintiff expected the judge to do in establishing damages? Legitimate reality check?
occasional Plaintiff with a
Allowing parties to exchange and very briefly discuss evidence gives me an idea of just how much “facts” are in play in a particular dispute. This helps me choose where to put my energies. Do I need to do anything with regards to the facts to establish an environment for negotiation, or do I turn more directly to the money involved?
The more of these cases I mediate the more I see attorneys involved. With representation, there is increased emphasis on evidence and witnesses. In these cases an attorney brings a “legal theory” to the court and a discipline to back up their cases with “evidence”. Most times the other party is “pro se”, inexperienced, and unprepared for this level of assault. It’s good for them to at least get a taste of what lies ahead as they weigh whether or not they want to negotiate.
The other “gotcha” that occurs
too often is the
Mediators, not being fact-finders is one thing. However, making use of “evidence” prepared for small claims court trial in the stacatto pace of pre-trial mediation is another. Exchanging evidence helps facilitate creating an environment conducive to negotiation and subsequently reaching agreement.