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Is Court-Referred Mediation ?Fair??

By Christopher Annunziata

As I was shuttling parties in and out of our room today during a court-referred mediation, I passed by a couple on a bench. They were either awaiting assignment to a mediator or were in mediation, but had stepped out of the room to allow caucus. (This courthouse has only 3 rooms for mediation, so we are forced to ask the parties to keep swapping to allow for caucus).

The man, who was visibly upset, turned to his companion and said, “After going through this, I have no more faith in the system.” In my mediation, I was having difficulty with a pro se plaintiff who didn’t think it was “fair” that she take less than what she was seeking despite several issues with her case - some procedural, some evidentiary.

I do not know for certain about what the man was speaking, but it made me stop for a moment and think. Are these court referred mediations just? Are they fair?

The cases I handle on most Monday mornings come from the Magistrate Court - that’s what we call our small claims courts. About 60% of the parties appear pro se. While there is a $15,000 jurisdictional maximum for any claim, the majority of these cases concern far less than $5000. There are disputes between neighbors and friends, vendors and clients, and complete strangers. I’ve seen cases about unpaid sales commissions, construction defects and souped up 60’s muscle cars.

The pro se plaintiffs who feel they are in the “right” inevitably ask me, “How can this be fair? They owe me money. They injured me (or wrecked my car). How can they get away with paying me less than what’s owed?”

The answer depends on the case. I analyze the situation. Sum up both sides’ strengths and weaknesses. Discuss the concepts of evidence and admissibility and hearsay and risk analysis. Sometimes it seems clear who is in “the right” (but I don’t tell them that). Sometimes, it is a toss-up. Other times, there are technical legal issues that will likely allow one party to prevail. While others involve cases that seem to have no legal remedy.

I believe that the agreements that are reached in these cases are just and fair because the process is just and fair. And I know the process is fair because, put simply, my settlement rate in these small claims cases is terrible. I am not forcing any party to accept terms with which they cannot live. The parties have time to express their needs, their concerns, their interests. They have time to reflect on how the court will look at their “evidence” or on the new information the other party just revealed (there is often little or no discovery in these cases).

I exert all the influence that I feel is appropriate, but in the end, it is the parties that make the final determination. And they often choose to allow the Magistrate to decide after each side gets 5 minutes to plead their case. Unfortunately, in many of cases I’ve handled, this is a terrible choice for the plaintiff. In the last four hotly contested mediations I conducted that resulted in impasse, the court eventually ruled in favor of the defendant.

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Full post as published by CKA Mediation and Arbitration Services Blog on June 09, 2008 (boomark / email).