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Small Claims Mediation: Changing Win/Lose to Win/Win

By Hon. Jay Albrooks, District Court, Birmingham, Alabama

5/12/2008

For eighteen months Sarah had been an ideal tenant who paid her rent on time, kept a spotless apartment and got along well with Linda, her landlord. Then, when the rent was due, she sent a note to the resident manager saying she would not pay as long as teenagers visiting across the street kept parking in her assigned space.

Fred and Paul work at the same factory, have sons who play on the same baseball team and have gone on family weekends together. But now they do not speak to each other. Fred bought a used car from Paul and three days later the air conditioner compressor quit working. Fred refuses to pay the balance due on the sales price and has locked the car in his garage.

These cases can be handled as routine trials in the local small claims or district court. Linda brings an unlawful detainer action to evict a good tenant for what is actually a mutual problem. Paul sues Fred for the contract balance or the return of a car he does not really want. On paper there will be a winner and a loser in each case but the underlying relationships will be critically damaged.

In cases like these where the parties have an ongoing business, social or even a family relationship there is a need for “life after litigation.” Whatever the outcome of the court action the parties must continue to interact with each other and our win/lose adversary system does not enhance the chances for resumption of these relationships on a normal or, sometimes, even a functional level.

One very practical and effective solution is a court-annexed, pro bono mediation program designed to meet the needs of self represented litigants. The mediators provide their time without fees and no additional court costs are incurred. Ideally, the case is diverted to mediation on the trial date so the self represented litigants do not have to make multiple appearances, since lost wages often amount to a loss in small claims regardless of the outcome at trial.

The process is voluntary but may be strongly encouraged by the court in its opening statement at the call of the docket. Mediation often gives the parties the first opportunity they have had to calmly communicate with each other in a non threatening setting before a neutral facilitator. At some point in the process, they usually have the opportunity to “vent” their frustrations and emotions through the buffer of the mediator, needs that are often at the heart of the litigation in the first place.

In most states small claims courts do not have equitable jurisdiction but the mediator can often help the parties shape a solution which is equitable in nature and could not be reached by trial of the matter. For example, in mediation the parties can agree to redo a repair in exchange for periodic payments on an agreed schedule. The court can then place the case on an administrative docket until the settlement has been completed.With the cooperation of volunteers from the local bar or the community, these programs require little or no additional funding. The process is not over-burdened with paperwork although it is helpful to keep records regarding the number of cases diverted to mediation and the success rate. Generally the record keeping consists of docket entries or orders showing the referral and the final disposition.

Qualifications for the mediators can be set by the court. The mediators can either be lawyers or community members from civic clubs or other organizations who respond to court presentations on the program and volunteer their time. Often, retired business people welcome the opportunity to put their career skills to work helping others. The court can conduct periodic training for the mediators to educate them on the how the mediation program is coordinated with the judicial process and focus on special considerations in interacting with self represented litigants.

The empirical data from such mediation programs shows a very high percentage of small claims litigants both elect to try mediation and reach an agreed resolution. Likewise, the judges who use these programs report the benefits of the additional time available for cases which must be tried.

If you handle cases involving self represented litigants who have ongoing business, social or family relationships and you are not currently using mediation as an alternative, you need to explore the possibility of creating your own program. A special benefit is the high degree of satisfaction with their court experience reported by litigants who have gone to mediation—an important consideration at a time when public perception of the efficiency of the justice system is of such interest.

To learn more about self-represented litigants, register for the NJC's Best Practices in Handling Cases with Self-Represented Litigants being held October 12-16, 2008 in San Diego, CA.