From the Small Claims Courts blog of Leo Hura.
In a multi-hour mediation session
my co-mediator reminded me “we are not fact finders” reflected by his refusal to
look at documents proffered as part of one party’s case. Personally, I accept at least a look at
documents with short descriptions of a party’s perspective on what’s relevant to
a negotiating position they may be trying to articulate.
Although I can’t spend a lot of
time on “evidence” in small claims court I encourage the exchange of relevant
documents each party is planning to introduce to advocate their case. Even the briefest discussion of evidence
encourages the other party to “listen”, reflect, and hopefully consider, whether
they should or should not negotiate during pre-trial mediation.
One reason I spend some very
valuable time on evidence is that unless the other party is represented by an
attorney or familiar with subpoenas there has been no discovery. Particularly relevant to most of my
cases are contracts and estimates.
Realizing there are reduced
requirements on the evidentiary rules in small claims court there isn’t a need
to dwell on issues like “foundation” which would be an issue in a trial outside
of small claims court.
One “fact” can turn a
negotiation. For example, in a case
regarding a financial institutions liability to a client, there was a question
whether a clients liability for a cashiers check, subsequently determined to be
fraudulent, ended when tendered and paid out or had the bank reserved the right
to confirm the transaction? The
cashiers check proved to be fraudulent and the bank charged the clients account
with a demand for the remaining balance.
A quick check of the banks, client contract, disclosed a difference of
opinion as to which set of conditions and clauses applied. The disclosure gave the parties a chance
to reflect and reconsider. Some
react to disclosures others do not.
After all it is still their choice.
As for estimates or receipts,
when required, are critical, not just to trial, but also in mediation. No Defendant wants to be
overcharged. No Plaintiff wants to
come out less than whole. No judge
wants to be manipulated as to damages claimed.
In one case the Plaintiff
presented estimates for repair which failed to include their own insurance
companies estimate. The difference
in cost between the insured’s own estimate and his company’s were
significant. His own insurer’s
appraisal was much, much lower. In this case Defendant had a copy of Plaintiff’s
insurance company’s estimate. I
simply asked the question what Plaintiff expected the judge to do in
establishing damages? Legitimate
occasional Plaintiff with a
Allowing parties to exchange and
very briefly discuss evidence gives me an idea of just how much “facts” are in
play in a particular dispute. This
helps me choose where to put my energies.
Do I need to do anything with regards to the facts to establish an
environment for negotiation, or do I turn more directly to the money
The more of these cases I mediate
the more I see attorneys involved. With representation, there is increased
emphasis on evidence and witnesses.
In these cases an attorney brings a “legal theory” to the court and a
discipline to back up their cases with “evidence”. Most times the other party is “pro se”,
inexperienced, and unprepared for this level of assault. It’s good for them to at least get a
taste of what lies ahead as they weigh whether or not they want to
The other “gotcha” that occurs
too often is the
a party they need a piece of evidence followed by, “I have it in the office and
I’ll get it”, not realizing it’s too late, a trial will follow a failed
mediation. They then have a tough
decision, soldier on, or negotiate.
not being fact-finders is one thing. However, making use of
“evidence” prepared for small claims court trial in the stacatto pace of pre-trial
mediation is another. Exchanging evidence helps facilitate creating an environment
conducive to negotiation and subsequently reaching agreement.
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