The New Solution: Mediation Courts Steer Small Claims Out the Door
   by Ralph Warner

Many small claims courts don't want your case--and that could be good
news for you. Courts are now encouraging people to solve their own
disputes with a little help from the court but without a trial. The
process is called mediation.

How It Works

In mediation, you and the other party meet with a neutral third person,
who helps you try to arrive at your own solution. Mediation is now
mandatory in a few Small Claims Courts and optional in many others. The
goal is that before a case is heard by a judge, you get an opportunity
to craft your own compromise.

When you file a small claims case, the clerk of the court may assign you
to mediation or strongly suggest that you look into it. Mediators may be
available right in the courthouse, or you may be referred to a local
mediation service.

Some mediators work for free; others are paid a modest fee by the court.
They are trained to help people talk about their disputes and come up
with reasonable solutions. (Most mediators aren't lawyers, in case you
were worried about being trapped in a room with both your opponent and a
statute-spouting attorney.)

Because mediators, unlike judges, have no power to impose a solution,
mediation sessions tend to be much more relaxed than a court proceeding.
They may last from 30 minutes to three hours.

Mediation also allows you to bring up other issues that may be poisoning
your relationship, which would not be considered relevant in court. For
example, a dispute over a neighbor's tree may really have its roots in a
perceived slur about the neighbor's race, religion or taste in

Why Mediate?

If you're convinced that your opponent is totally unreasonable, you may
wonder why you should waste time mediating. But experience shows that
when the parties to a Small Claims Court case voluntarily agree to
mediate, the overwhelming majority of disputes are settled. Even when
people who don't want to mediate are forced to go through the process,
mediation gets results: In Maine, where mediation is mandatory, about
50% of cases settle.

Settlement is especially likely when, deep down, one or both parties
want to arrive at a solution that is at least minimally acceptable to
the other party. This is particularly common in disputes between
neighbors or small business people who work in the same area and really
don't want the dispute to fester.

Mediation has other benefits, too. People who agree to mediate their
cases are more likely to be satisfied with the outcome than are small
claims litigants who go directly to court, according to a 1992 study by
the National Center for State Courts. One big reason for this is that
people who arrive at a mediated settlement are more likely to pay up
than are people who lose at trial.

Mediation isn't a good idea in every case. If you are determined to get
every penny you are asking for, and you don't have an ongoing
relationship with the other party, bypassing mediation and going
directly to Small Claims Court (except in the few places where mediation
is mandatory) makes the best sense.

For example, let's say you moved out of your apartment and left it
undamaged and spotless, but the manager made up a bogus reason to avoid
refunding your $1,500 deposit. You could well decide that proposing
mediation is a waste of time, because you are pretty sure that in court
you'll win the entire $1,500, plus a $500 penalty, as provided by your
state's rental deposit law.

If you do want to mediate, how can you get a reluctant opponent to the
table if mediation isn't mandatory? Mediators can help with that, too.
Typically, as soon as you notify a local court-sponsored or community
mediation program that you would like to try mediation, (notification is
often automatic with a court-sponsored program), someone from the
mediation program will contact the other party and try to arrange a
mediation session. They have lots of practice at convincing reluctance
people to sit down at the bargaining table.

If you're the one being sued, or you've received a letter threatening
suit, should you ask for mediation? The answer is almost always a
resounding yes, if you have a defense to all or part of the plaintiff's
claim, or believe that while the plaintiff may have a decent case, he is
asking for too much. You really don't have anything to lose.

Copyright  1995 Nolo Press
This article originally appeared in the Fall 1995 issue of the Nolo
News. Ralph Warner is Publisher at Nolo Press. You may copy this article
so long as you include this copyright notice.

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