From the Small Claims Courts blog of Leo Hura.
In small claims court
successful agreements are often driven by what the judge has to say just before
he sends the disputants to mediation.
Savvy disputants take a measure of a judge and often, consciously or
unconsciously, react to a judges admonitions.
In opening remarks it
is important to differentiate between mediation and trial. In very basic form mediation is
negotiation leading to mutual agreement or impasse while trial is evidence, the
law, a judge’s verdict.
It is also important
to stress, it’s about the money, and the mediator’s job is largely to get the
disputants within a common range and to find a sum where agreement can take
place. There are certainly other
possible benefits from a mediated agreement but it’s not the trend.
As a major time saver
it is important to stress the disputants don’t have to convince the mediator
about who’s right and who’s wrong.
In such a scenario presentations of evidence are usually reserved to
satisfy a need to know by the opponent since there is no pre-trial discovery
which, when seen, can turn the tide towards a mediated agreement.
In small claims cases
opponents are often caught in very fixed positions because their whole mindset
is on trial. Some never make the transition into negotiations of a mediated
session. In such cases I look for
an impact statement during my opening remarks. In my approach I stress the requirements
to mediate are a willingness to negotiate and authority to reach agreement. If either party says no, it usually
means just that, no.
Time is very limited
for separate caucuses. When I use
them it’s usually for a very specific purpose or sometimes it’s something in
what a party says or even the body language. And, I’ve had a few occasions where I’ve
been ready to shutdown a mediation, a party asks for a separate caucus. When this happens it usually opens up a
channel towards agreement.
In many cases I feel
if we had more time, agreement could be reached. At other times when a disputant is
insistent on trial despite the weakness of their case it is hard to let go. In both cases I do let go and this is
where the time limits become a helper.
Not every case is going to result in agreement and there are times where
very few agreements are reached.
When agreement is
reached, memorialization in writing is very brief. If impasse results the disputants
proceed directly to trial somewhat better prepared to present their case.
I’m always interested
in what others in this field experience.
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