From the Small Claims Courts blog of Leo Hura.
Many of us will love it when we mediate multimillion dollar high profile mediation cases. To get there we need to develop and demonstrate superior mediation skills combined with a sense of business acumen, marketing, and a bit of luck. Because of its focus, it’s about the money, small claims court mediation offers not only court and public service opportunities, but skills developed can be leveraged for use in complex cases. Some examples as well as cautions follow as we prepare to give this blog topic a rest.
I began this blog series by describing small claims court mediations as a “hard ball” negotiations environment created through its coupling with district court small claims objectives and schedules. Small claims court mediations are time constrained. Agreements are almost always going to be about money. Yet mediators must comport to the same standards of longer more complex mediations as it concerns confidentiality, explanations of process, and build a sense of confidence and trust.
1. Economizing on every step without losing the message – Mediator opening statements example. In my pro bono work with theMediation Center of the Pacific, Inc. we co-mediate cases held at the center. Co-mediations are wonderful opportunities to share and learn. One example of a benefit comes from co-mediating with apprentices whose opening statements are too long. Small claims court teaches what a “speech coach” I once used for improving my corporate presentations had me demonstrate. He asked me to prepare an introduction for an exercise presentation. My first attempts were expansive and missed critical points. Over time he had me condense the intro into 30 seconds or less. The messages were more focused. No information was lost. The introduction was audience oriented, complete, and when delivered nobody was drowsy. I continue to learn how to economize and use time gained to add to the scope of my mediation process. Likewise if we don’t focus the parties, we might have a party wanting to read a prepared statement which itself will take twenty minutes. Don’t we all love prepared statements? To be honest, in presentations I once made in my past profession, I prepared and read statements in front of senior management committees, so this is not a put down. On one occasion I had to be saved from my read statement by a guy who became the CEO. In any mediation, yes, the parties need to be informed, but the primary reason they are there is to be heard and to negotiate. Putting them to sleep in the very beginning is not a good idea.
2. We encourage parties to “open” with statements answering mediator directed questions like “tell us why you are here and what you hope to accomplish in this mediation?” We work on establishing rapport, acknowledge their issues, demonstrate empathy. We can build on these steps with separate caucuses to develop better understanding of the issues. Finally we work to get to negotiations, collaboration and problem solving. Keys to success include an understanding of issues, interests and needs, linking them to a common problem statement, finally coupled with the establishment of a collaborative problem solving environment and working through to agreement. There’s no difference in the requirements for success in small claims court mediation except all we have time to do is assume the primary need is to collect or avoid paying money. In having disputants get there we must focus on party interests in which money is the need. Working backwards, we have to identify an issue directly co relatable or most closely related to money. If we do not, kiss agreement goodbye and let the judge decide based on an evidentiary hearing. This kind of reverse engineering allows for the development of sensitivity to at least the money factor in any case. As an example, take a Defendant who is countersuing for time lost due to the court proceedings. The amount counter-claimed is usually much greater than what Plaintiff is asking for in her complaint. Are they serious? Knee-jerk reaction? As a mediator I may have to test hard for Defendant to identify an issue which will bring us into the same range for productive negotiations to occur.
3. Closing an agreement can be tricky. A wrong move and time runs out. In small claims court learning how to close successfully is certainly a skill with carryover to longer mediations. If I can negotiate a money agreement in small claims court mediations it increases my confidence I can do the same and more in longer mediations.
4. Instant feedback. When negotiations fail to reach agreement in small claims court mediation I can get some instant feedback by sitting in on the trial which follows. Over time and numerous cases useful information on mediating particular issues and by application, build stronger skills. There’s sufficient interface with judges and attorneys to build basic skills in dealing with the judiciary and client advocates. The feedback and interfaces with judges and attorneys is transferable to more complex cases.
5. I learn to mediate with “ordinary” people. Since most cases are pro se my experience base is being built on interfaces with the people actually involved in the accident, suing for or being sued for damages, or for the unpaid rent. They run the gamut from the very experienced, to the first timer, to the challenged. They can be all business with a few, all raw emotion. Some are glad to have me as their mediator while others want somebody else. Some leave very satisfied while others are not. I learned very quickly to deal with them all. In complex cases the “ordinary people” factor is still there.
6. Caution. I am not, however, suggesting immediate application of hard ball negotiations for mediations of longer duration because, for example, in some cases there are underlying issues which have to be resolved before reaching the money agreement stage. Push hard ball negotiations too much, be ready for at least a complaint of “you’re not a good listener”.
As an aside my discussion in the introductory paragraph must sound, so Plaintiff oriented. In what may be a systemic problem, and as demonstrated in trials which follow failed mediations, the reality is, Defendants often actually have valid reasons to counter sue. Not many do, and to make matters worse, Defendants fail to leverage issues which can be in their counter claims in the negotiation process of pre-trial small claims court mediations.
Thanks for the opportunity to be heard.
1 In the use of “hard-ball” negotiations I violated basic writing rules by using a cliché. For the non-American and non-sports fans “hard-ball” refers to the hardball used in American baseball. If you hit it right, the hardball goes a long way. If a hardball hits you, at the speed it travels from the arm of a “pitcher”, it can break bones, knock you out, or worse. I couldn’t find a reference to “hard-ball” on the internet.
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