From the Small Claims Courts blog of Leo Hura.
Defendants in small claims cases vary from, the shell shocked to the
defiant, “Plaintiff does not have a
case”. Emotions can run high. At
times belligerence is palpable. My
favorite, are landlords who have either not read the landlord tenant code or who
view themselves covered by inserting a forfeiture clause in their lease
agreements and are finally challenged by a tenant in a complaint. As I will not offer them advice I ask
the question, “have you read the code and do you understand how it applies to
your case?”. Most in this defiant
category mumble a response, which sounds like an unconvincing, “yes”.
There used to be a
time, early on, when I believed and practiced small claims court mediation on
broad principles of mediation, get them to listen, talk, agree to collaborate,
problem solve, reach agreement, with the result we ran out of time. Disputants
were forced to proceed to trial without ever getting into discussions over the
focus, the money judgment or dismissal the court is empowered to reach.
To a degree the
Defendant is in the “hot seat”, she has to give something up to reach
agreement. Somehow it is really
difficult for us, as humans to give up possession of something, in this case
So what do Defendant’s
do? They outright deny and
challenge the Plaintiff to go to trial.
They capitulate and agree to the demands of the Plaintiff. They negotiate. I’d like to share a few thoughts on each
of these states of Defendant mindsets.
When a Defendant
offers a downright denial of the complaint I may ask for a separate session so I
can ask a few questions. In the
opening paragraph I offered an example of a question asked of landlords. I may also ask questions about what they
think the judge will do with the evidence Plaintiff has presented and what
evidence they will use to counter Plaintiff’s claims. I don’t judge, advise, offer
counterarguments to what Defendant says.
My goal is for Defendant to have an opportunity to weigh his position
against the weight of Plaintiff’s case in as objective a manner as possible. If
Defendant is still adamant in an outright denial of Plaintiff’s case, I may just
pause for a small but significant amount of time for reflection, a few deep
breaths, and indicate I will relay the denial to Plaintiff. At times the pause gives the Defendant a
chance to process what we just went over and perhaps reconsider their
On the other hand,
capitulation to Plaintiff, most often comes in private session. So, how do I, as mediator, ascertain
there is a desire to capitulate? At
times, and based on experience a case can be so hopeless it begs for a quick
agreement. Everyone in the room can
sense it based on what is revealed in the joint session. The judge’s remarks during review of the
case before mediation can also be a catalyst. At the next level there can be overt
signals emanating from Defendant ranging from their body language to a request
for a separate session. In such
cases Defendants can state they agree to capitulate or they might need just the
slightest nudge towards capitulation.
They want me to hear their concerns, proffer questions, and even ask for
opinions. I won’t give opinions or
offer legal advice. I will select
from a variety of available techniques to help the Defendant answer their own
question, which they usually do.
The third state is a
Defendant willing to negotiate, reflected in positions ranging from slight
concession, a few nominal dollars, to considering Plaintiff’s demands as valid
warranting consideration, discounted by some factor, including the famous,
“let’s split the difference”, or another favorite, “ my authority is limited to
$x, anything else will require higher authorization”. In some cases Defendants view the
relationship as important, offering concessions as a means of safeguarding a
Offers by either side
to “split the difference” sometimes works. I don’t offer it as a mediator
suggestion except as a last step when the parties are within a very close
negotiating range. I find my
offering it, is often a “turn off” or viewed as a somewhat flippant suggestion,
coming from me.
Assuming they do
achieve common range of dollars in a negotiation, the action becomes fast and
furious, accelerating to a mutually acceptable number. Once we reach this stage the trend is
If a Defendant feels
they are giving too much away or has a “what do I have to lose if we go to
trial” moment they can break off negotiations, and do go to trial. In these types of situations they need a
non-dollar reason to Agree to a negotiated settlement.
As for the shell
shocked, who capitulate, they walk away very dissatisfied and
disillusioned. I learned not to say
things like “it’s sometimes tough to be a landlady” when the landlady agrees to
return a security deposit. It only
makes things worse.
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