Small Claims Mediation Programs

General Benefits of Small Claims
Mediation Programs

The
benefits reported by small claims program administrators, parties and court
personnel are as follows:

· Many cases
settle, relieving the court docket and allowing Judges to give more time and
attention to difficult cases. Judges
appreciate the reduced workload and less hectic pace.

· When cases
settle, parties are often more satisfied with solutions they created and
tailored themselves

· Higher
compliance rates with mediated solutions[1]
and reduced rates of appeals

· Parties feel
they are getting good service. They
have really been heard and understood even if the case does not settle.

· Venting in mediation often helps de-escalate emotions if
the casecontinues to court

· Rehearsal,
organization of information and document exchange in mediation leads to more
concise and cohesive, expedited case presentation in court

· Very good tool
for training new mediators (especially if co-mediation with more experienced
mediators is used)

Use of “Same-Day” and/or “Pre-hearing
Model”

Some
administrators, such as Nancy Heischman of the Santa Cruz, California program,
feel that parties strongly prefer the same-day model because “whatever happens,
they know they are finished at the end of the day.” However, it does not appear that most programs have made a
deliberate choice of one model over the other but rather use the model that is
most feasible given the resources of the mediation provider(s) and the court
where services are to be provided. A
number of programs offer both models.
Both models have been very well received and successful in a number of
locations,[2]
although there do appear to be some differences in the ability to get cases to
the table, the quality of the process and the settlement rates obtained.

A. Getting the Cases to the Table

It is easier to generate a substantial caseload if
the mediators go to the parties rather than requesting that the parties come to
them. Parties who would not try
mediation if requested to attend a pre-hearing session will do so if it is
convenient and seems to be part of the process on the day of the court
hearing. There is more time and effort
involved in generating “pre-hearing” mediation sessions, with a lower volume of
cases brought to the table. However,
there is some evidence that this is changing as public consciousness of
mediation and its benefits increases, and some parties appreciate the
opportunity to take part in a mediation on a schedule that does not require
them to miss work. In one Oklahoma
county, the court observed a drop in its caseload from 80 to 30 cases a month
when it started offering information on a pre-hearing mediation service.

B. Quality of Process

Both mediators and program administrators
experienced with the two different models report that the quality of process is
lower for same-day cases. The
conditions for mediation of these cases are not ideal. The mediators are
usually operating under significant time pressures, the parties may be mentally
prepared and pre-disposed to see the Judge, the physical facilities may be
cramped and/or lacking in privacy, and unskilled mediators often respond to
this kind of pressure by using more heavy-handed, evaluative tactics. While still recognized as valuable, some refer
to these cases as “shotgun mediation.”

C. Settlement
Rate Differences

Probably as a result of the differences in process
quality, the settlement rates for same-day mediations are generally
significantly lower. It seems to be
common for settlement rates in same-day mediation programs to be approximately
50%[3],
as compared to settlement rates that range from 75%-92%[4]
for pre-hearing programs. However, it
must be remembered that a 50% settlement rate is still quite helpful to the
court, and many of these cases would not have reached mediation at all in the
absence of the same-day service opportunity.

Training, Experience, Continuity of
Mediators

All
program administrators interviewed suggested that it is particularly important
to use skilled mediators for “same-day” mediations in small claims court, given
the pressures under which these mediators must operate. It is recommended that these mediators be
not only trained but experienced with the process or using a co-mediation model
that pairs less experienced mediators with more experienced mediators.

Where
programs have been in place for some time, administrators reported that there
seems to be more continuity, and therefore greater experience accumulated over
time, when community mediators are used.
These mediators are often older and more settled in their lives, so that
it is common for them to remain with the program for years. For example, in San Mateo, many of the
mediators have been with the program for 5 – 10 years. Where programs have used law students,
administrators observed that there was a natural turnover associated with their
progression through and departure from law school, with most students serving
no more than a year. They also noted a
natural tendency for law students to conduct mediations with more focus on the
law and application of more evaluative tactics. However, a highly respected program in Oklahoma reports that law
student who are trained by the community program and serve under the auspices
of that program perform very well, with no noticeable difference in the quality
of their mediations.[5]

With respect to training, it is common to require at least
20-30 hours of training in mediation and other experiential learning. For example, in order to be certified to
receive court referred cases in Virginia, mediators must complete (at minimum):
20 hours of process training, 4 hour introduction to the VA Judicial System, 2
observations of cases (or completion of an 8 hour role play course) and
co-mediation of 3 cases (with a combined total of at least 5 hours spent in
mediation) with a Certified Mentor mediator.

Case Selection or Screening Process

Case
selection may be handled differently depending upon whether a “same-day” or
“pre-hearing” model is used. In many
programs, there is little or no screening of “same-day” cases. For example, in San Mateo, the only cases
screened out of mediation are those that are “default” cases (e.g. one of the
parties fails to appear). All
“contested” cases (both parties present) are expected to go to mediation.

Where screening is used, it is generally a matter of
eliminating certain cases from consideration for mediation rather than
selecting those that might be more likely to benefit from mediation.[6] In pre-hearing programs, the factors that
seem to be most common in this elimination process are simply (1) geographic
proximity of the parties (i.e. too far from mediation location); and (2)
ability to contact the parties (e.g. lack phone contact information for both).[7] Other factors cited by different
administrators as potential reasons for elimination include: (1) auto-accident
cases (parties focused on fault finding); (2) one party is large institutions
seeking to recover on debt (but some exceptions noted here); (3) one party is a
governmental agency; (4) a history of domestic violence; (5) cognitive ability
to participate in mediation (which may be difficult to determine prior to
mediation). However, the usefulness of
some of these other factors seems debatable as some programs have reported good
results, for example, with “past-due” account cases and large institutions.[8] In many cases, the approach of pre-hearing
programs is to contact all parties possible (within the service area), and
allow the participants to screen themselves out of mediation.

Promotion of Participation in
Mediation

For
same-day programs, it appears to be quite common for courts to inform the
parties that they are expected to participate in mediation before the Judge
will hear their case. This may be done
before the date of the hearing, upon arrival, or both. The person making the presentation may be a
Judge, bailiff, court clerk, or small claims program administrator as long as
it is clear that the weight of the court is behind it. It is helpful if the Judges support the
process by verifying compliance with the procedure. In the case of Santa Barbara, the Presiding Judge has also
promulgated a Local Rule allowing judges to assign cases to mediation, although
not all use it. In Minneapolis,
Minnesota, the court encourages the use of mediation by reassuring parties that
their case will get bumped to the head of the docket if they try the process
and are unable to settle.

For
pre-hearing programs, it is common to provide parties with a brochure or other
information upon filing by the plaintiff and upon service to the
defendant. The mediation service
provider then follows up with any cases that have passed screening either by
telephone, letter or both. In these
programs, parties are not told that they are expected to participate in a
pre-hearing mediation but are given information on the benefits of the service
and encouraged to consider it.[9] As noted earlier, many program providers are
noticing a significant increase in unsolicited inquiries into the mediation
process based upon greater public awareness of and interest in mediation.

Coordination with Court Calendar

None
of the program administrators interviewed reported problems in coordination
with the court calendar, although all reported that this was a significant
concern of the courts and that they were very sensitive to this concern. For example, the Santa Barbara pre-hearing
program avoids taking on cases, despite party interest, if the hearing date is
too close (2-3 days away).
Administrators suggested that courts become more willing to provide
continuances to support the mediation program as court personnel become more
comfortable with the program and develop relationships with the provider. These continuances do not appear to create
problems for the court as long as the time periods are short (commonly 30 days)
and the process is clearly defined.

When cases are settled in mediation, most programs have an
arrangement similar to the one followed by the Santa Cruz, California
program. There, the mediated agreement
form allows for the case to be taken off calendar pending fulfillment of the
agreement. If the defendant defaults,
the plaintiff can petition to have the agreement converted to a judgment.
Defendants benefit from the fact that a mediated settlement, unlike a judgment,
results in no damage to credit records.

Court and Party Satisfaction

Administrators for the existing programs interviewed
reported substantial court satisfaction with the mediation programs, regardless
of whether a pre-hearing or same-day model was used. However, it should be noted that two administrators reported that
previous same-day programs associated with their courts had been discontinued
due to problems that were not clearly identified or known to these
administrators. Some strong programs
experienced difficulties when they were getting established, but all have seen
increasing levels of support from court personnel over time as the benefits of
the program become clear and good working relationships are developed.

The
rates reported for party satisfaction consistently seem to exceed 90%,
including parties reporting on cases which did not settle as a result of
mediation. For example, from July 1999
– June 2000 in San Mateo, 146 cases voluntarily participated in mediation and
surveys were received from parties in 114 of these cases. In these surveys, 91% of participants said
the mediation was “a positive experience,” 100% said the mediator was “fair and
impartial,” 98% “would use mediation again,” and 99% “would recommend mediation
to others.” Of the cases mediated, 48%
were successfully resolved. In
Oklahoma, the courts follow up on all cases where agreement is reached and
report a 90% compliance rate and better than 90% satisfaction rate.



[1] For example,
Daniel Taggart reports that very few cases ending in a mediated agreement come
back to court for enforcement (as opposed to the interrogatory and garnishment
proceedings which frequently follow a judgment) in the Arlington and Fairfax,
Virginia program. Timothy Hedeen of
Minnesota reports that less than half of small claims judgments are paid in a
timely manner, while mediated agreements are around 80%–see McEwen and
Maiman’s study cited in http://www.ncjrs.org/txtfiles/165698.txt .

[2] But note
that Jonathan Krutz of Nebraska reports that a same-day program in Omaha was
dropped, to be replaced with a pre-hearing model, based on recognition that the
“artificial time constraints of day-of-court mediation are not conducive to an
interest-based problem-solving approach.”
Similarly, a same-day service was discontinued in one of the California
courts.

[3] Examples of
rates or same-day programs: San Mateo reports 48% settlement rate, Santa
Barbara reports approximately 50%, Hawaii ADR Center 10 year retrospective
reports decision to extend small claims pilot program indefinitely, finding
“over 50%” of cases settled using same-day model, Sue Tate of Oklahoma reports
approximately 60%. The rates in the
Arlington and Fairfax programs in Virginia appear to be similar overall, but
the Fairfax court has rates closer to 75% for certain types of cases
(consumer/merchant and contract debt) and the program in Santa Cruz California
reports 80-85% settlement rate.

[4] Examples of
rates for pre-hearing programs: Santa Clara reports approximately 90%
settlement rate, Southeast Nebraska mediation center reports 75% settlement
rate, not including cases resolved through center without mediation, Oklahoma
reports approximately 75%.

[5] Oklahoma law
requires all court-related mediation services to be provided by public
entities. In Oklahoma City, the Law
School is the sponsor of the community program and uses both law students and
outside community mediators.

[6] But in
Virginia, some judges emphasize that if there is any kind of relationship
between the parties (relatives, consumer/merchant, landlord/tenant, neighbors,
etc.) they should try mediation.

[7]
Interestingly, the Santa Cruz screening form is much more extensive including
the following factors: Unwilling to mediate, Unwilling to negotiate, Not
authorized to negotiate, No agreement re: basic facts, Defendant claims no
liability, Defendant’s best offer has been refused by plaintiff, Settlement
hinges on a legal interpretation, “Matter of principle” for
plaintiff, Too angry, No trust, Too complex (the last three due to time
constraints of on-site mediation). It
would be helpful to explore whether this more extensive screening is related to
the unusually high settlement rate (80-85%) for the Santa Cruz same-day
program.

[8] Both the Southeast
Nebraska Mediation Center and the Santa Clara
program reported success with
these cases.

[9] The
Southeast Nebraska Mediation Center reports that out of 419 cases referred to
mediation from July 1998 to June 1999, 55 met in mediation and 11 others were
resolved through contact with the center.
Similarly, the Santa Clara program indicated that, out of 471 cases
referred to mediation from January –
March 2001, 77 went to mediation or conciliation.

                        author

Jessica Notini

Jessica Notini has been an attorney since 1989 and a mediator since 1994. She is an Adjunct Professor of Mediation at Golden Gate University, Administrative Coordinator for the California Dispute Resolution Institute and President of the Northern California Mediation Association. She graduated magna cum laude from the University of Michigan… MORE >

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