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The New Solution:
Mediation Courts Steer Small Claims Out the Door
by Ralph Warner
Copyright © 1995 Nolo Press
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 motorcycles.
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.
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