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Focusing on Plaintiff’s at Small Claims Court Mediations

From the Small Claims Courts blog of Leo Hura.

Plaintiff’s coming to small
claims are usually ‘pro se’ and may or may not be experienced in either the law
nor the procedures for winning their case, much less negotiating an
agreement.  As a small claims court
mediator, I find myself having to quickly assess individual Plaintiff’s
to effectively deal with their issues, interests, and needs.


The range of knowledge about
small claims on the part of Plaintiff’s ranges from, the very experienced to the
first timer, haven’t a clue.  They
mostly feel, they are going to win their case, although a few come in because
somebody told them to do so or because the statute of limitations is going to


Representation varies.  In some cases, as for example in
“security deposit cases”, attorneys are not permitted.  Most plaintiffs come without attorneys,
a few do.  Some are represented by a
“friend”.  In our cases a translator
is not uncommon.  The attorneys who
do come usually have small claims court experience but at times there are those
who are doing a client a “favor” (they are certainly there advocating in a
totally dedicated manner).  At other
times an Agent represents Plaintiff.


Being ‘pro se’ presents some
unique challenges.  Most Plaintiff’s
coming to small claims court do not know the law.  Some, especially in “security deposit”
cases, know the law and how to apply it. 
A few Plaintiff’s file suits based on “fairness’ standards they set.  Some Plaintiff’s file suits as part of
an ongoing struggle with life, as for example, drivers who are serially
involved in “fender benders” and always claim it’s the other guys
fault.  There are a few who file
claims as part of their standard business practices, as for example, by firms
involved in making small but risky loans. 
Then there are those who seem to run “seedy” businesses and know how to
take advantage of vulnerable clients or customers.  When I go into small claims court I
never know what kind of Plaintiff I will have in a mediation session.


If I’m in court I sometime get a
chance to view a Plaintiff in front of the judge during his review of the cases
before deciding which cases will be sent to mediation.  Sometimes my first exposure is in the
mediation session itself.


Many Plaintiff’s conduct
themselves professionally and matter of factly and courteously but some
Plaintiff’s are emotional.  Some are
distressed, angry, disbelieving anyone could do what the Defendant has done to
them, and at times they just cannot sit in the same room with Defendant.  I consider what is said in court and
body language as a first assessment of the potential demeanor of 
both Plaintiff and Defendant in deciding on how to proceed.  Given the very small space in which we
have to fit for a mediation session, if there is any question whatsoever about
safety, I will ask.


If there is a particular type of
behavior more common then another, it is, Plaintiff’s are more or less in
control of their emotions. Perhaps because they view control as an
important factor to help them win their case at trial their demeanor is
outwardly unemotional.  They tend to
exhibit “certainty” about their case which at times makes them reticent to
listen to a Defendant.  The judge’s
introductory remarks, and admonitions about ensuring they take mediation
seriously, can  impact their behavior on entering mediation.


Not being attorneys, Plaintiff’s
can at times have difficulty in articulating their case. When this happens I
listen more carefully to try and get a feel of what they are trying to claim and
why.  Since getting to the point is
critical, in these time limited mediations, I normally try and reframe or
reflect the Plaintiff’s claim in terms of dollars demanded and why.


Plaintiff’s come to court with a
variety of evidence.  Some come
without any evidence other than their complaint and notice of service, not
realizing they are going to trial immediately after the mediation.  Others, usually represented, come, in
comparison with those with nothing, as meticulously prepared.


Plaintiff’s, at times, are
terrible listeners.  They are so
locked up with their case, thinking at all times of how they are going to
convince the judge they are right, they just miss critical points in
mediation.  They don’t have a case,
or it’s a close call, or the Defendant is willing to deal, but not where the
Plaintiff thinks they should.  As
mediators, each of us has our approaches to these situations. My range is from,
conducting a reality check or more, to, it’s everyone’s right to make even
stupid decisions.  Whatever approach
I use, I don’t get argumentative, nor will I get sucked into advising a
Plaintiff as to what to do.


Since it’s about the money, I
need to know there is authority to make a decision for Agreement or get one
within the time frame available.  I
always ask.


Are some Plaintiff’s manipulative
of the system?  Are they telling a
tainted version of the truth or worse? 
Are they being ethical? 
Occasionally I have experienced Plaintiff’s tell me one thing and then, I
swear, they change something before the judge.  At those times I feel my hearing must be


Do Plaintiff’s hold a power
imbalance in their favor?  Many feel
as they do because they filed the claim and so it must be, I’m on the offensive.
My impression is, at times Plaintiff’s have an advantage because they hold a
“hand” Defendant does not see until the mediation.  Even if it is an advantage, the
Plaintiff still has to prove his case, with a preponderance of evidence. As the
judge usually tells them beforehand, her interpretation of the evidence and or
the law may differ.  And, in certain
situations that is exactly what happens.


As I have not seen significant
power imbalances during my time at small claims court perhaps a reader with more
experience, who has, will share an example and how they dealt with?




Leo Hura

Leo Hura, Mediator -JD - Facilitator -Conflict Resolution Training Program Developer practices mediation out of Honolulu Hawaii.  An experienced mediator Leo has turned his atttention to developing training programs designed to inform, educate, and promote the use of peaceful means for avoiding, preventing, resolving conflict in business with business, business with client, and… MORE >

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