From the Small Claims Courts blog of Leo Hura.
As a Mediator one of my goals is
to mediate durable agreements with high client satisfaction. Reality tests and mediator suggestions
are fascinating topics for discussion in any mediation setting. They can be extremely useful to
disputants in reaching agreement.
They also have the potential to be perceived as abusive in time
constrained mediations. As small claims court mediations are severely
time constrained, use of reality tests or mediator suggestions walk a fine
line between benefit and the risk. A party may leave feeling pressured into accepting
a term they would not have agreed to, but for the time crunch, and
further blame the mediator for having brought up the issue in a reality test
or mediator suggestion. The worst case
scenario is, a conclusion by a party the mediator abused his power.
It is normal
for parties and
mediator to feel the pressure in “hard ball” negotiations at small claims court especially when
a mediator announces, “soon the clerk will be knocking on the door asking us to return
to the courtroom for trial”. If they want to
settle but get stuck on one or more issues t
he feeling of unease is
palpable in one or both parties .
I have to make a decision whether to use a reality test, make mediator
suggestions, or let the mediation go into impasse as time runs out. The consequences for one or both parties
are to proceed to trial they may not want.
These two factors, time and not wanting to go to trial, create both an opportunity
and worry for me, as mediator, in utilizing reality tests or mediator
An example mediation scenario, followed by
a few specific examples follow.
The dispute, between two pro se
opponents, is over money owed for a shared leased car returned to the leasing
company with damages. One paid the money
owed while the other failed to contribute to the money due. In small claims court the judge asks
disputants to briefly describe their case and whether Defendant disputes the
The Defendant disputes the claim.
The judge explains mediation is mandatory, they are better off reaching
agreement there, and if no agreement is reached, an evidence based trial will
follow this day. The judge refers
the disputants to me, as mediator.
I have twenty to thirty minutes to either get to Agreement or send them
back to court for trial. I explain
the process and my role. The disputants signal they understand they are in a
mediation, a negotiation, which is very different from the court room,
evidentiary hearing. I advise them the primary objective of this mediation is to
get them within a common range to achieve a monetary agreement. The disputants indicate a willingness to
negotiate and we begin. Plaintiff
starts out with a demand for $3499.
Defendant counters with $1500, hardly in range of each other. Emotions kick in. Negotiations begin to
stall over issues. Time is running
down. I signal to the parties time
is getting preciously short. Is
this the time for reality checks and/or mediator suggestions? Or, do I just let it go, declare
impasse, and let them resolve the issues at trial? I decide to
utilize either or both. A few examples follow. The tables below are divided into two
Part one deals with reality testing issues which may arise
in the final moments of small claims mediation in the context of the alternative
of going to trial. In column two I
provide potential wording of a reality testing with a question mark? Is this the right thing to do and
wording to use?
Part two deals with mediator suggestions associated with
facilitating agreement. The last
example is the use of the “hammer”, suggesting impasse.
Part 1: Reality
Acceptable Reality Check from a Mediator?
A party has no estimates
Have you considered what
Do you know whether small
Do you know whether small
Do you know whether small
I want to ask the judge
Do you know whether a judge
What do you as mediator
I cannot offer opinions nor
Part 2 – Moving the
Acceptable Mediator Suggestions?
Both sides are bogged down
Parties are stuck on a term
May I suggest we add (give
After a long pause with no
I believe we’re in impasse
Time, coupled with a desire to
reach Agreement create significant pressure on small claims court disputants in
pre-trial mediation. As the time winds down we reach a juncture where reality
tests and mediator suggestions can and do make a difference. The risk is, a party walking away feeling
dissatisfied or even abused, blaming a mediator. Each of us has to make a choice whether or
not to use reality testing or mediator suggestions in this venue. I do. I don’t
have any hard or fast rules on their use nor the form of delivery. Their use
and the way they are brought forward are case and disputant dependant, requiring
significant judgment calls, to successfully walk the fine line between benefit and
risk of being blamed for a “bad” agreement. It would be nice to get into BATNA’s,
Plan B’s, decision analysis, risk mitigation, but I find those techniques
difficult to utilize in small claims court scenarios lasting 20 to 30
minutes. Ultimately, whether or not
our reality tests or mediator suggestions are effective, is a question which
only disputants can answer. I wish
I had data.