Enjoy Mediation Blog by Jeff Thompson, guest article by Heather Scheiwe Kulp
My favorite part of new mediator training is watching the attendees discover the potential value of mediation. They nod knowingly when they realize how brainstorming creative options based on parties’ real interests may change the dynamic of winner-takes-all, money-is-everything court battles.
Eager new mediators crave experience, not only for its own sake, but also so they can use their skills to serve people in conflict. One of the most common venues for new mediators to gain such experience is small claims court. Litigants, often without attorneys and seeking what the court deems as minimal claims, are referred to these mediators, given a certain period to resolve the dispute, then sent back to court for a trial if the dispute cannot be resolved in mediation.
Though the volume of these cases has grown larger with the recession, few studies have focused on understanding the process that encourages small claims cases to be referred to and settle in mediation. Perhaps this is because the court sees such claims as minimal (though the dispute and the money are significant to the parties). Perhaps it is because we often send our newest, likely unpaid, mediators into these settings. Yet, small claims mediation programs offer an insightful picture into court dispute systems design; how does a court manage the disputes of a significant number of litigants who seek access to justice in a system they don’t understand very well?
To write this article, I examined publically-available statistics from at least one small claims mediation program in each of the 50 states. I also outlined how each of these programs referred cases into mediation. Categorizing similar types of referral systems, I developed six referral models:
ADR Required, Parties Choose Process
Mediation Ordered or Suggested at Filing, Parties Mediate Outside Court
Mediation Required, Must Occur at or Before Hearing
Mediation Ordered or Recommended by Court at Hearing
Mediation Suggested by Court, Parties Choose and Mediate Outside Court
Mediation Suggested by Court, Parties Choose and Mediate at Hearing
I then analyzed whether there were statistical patterns in each models’ representative programs. No “best” type of referral emerged. Certain models offer benefits to programs dedicated to providing greater access to mediation services for all small claims litigants. Other models offer benefits to programs that intend to send to mediation the cases most likely to settle. Still other models are most effective when all parts in a court system are dedicated to promoting mediation, no matter the outcome.
The models suggest common themes for providing greater access to justice. First, the earlier a referral is made, the greater likelihood the case will settle. “Early” can mean before a case is filed. Second, basic education from an authority figure, like a judge, leads more litigants to try mediation. Education means more than telling litigants mediation is available; it involves explaining what mediation is and what some of its benefits may be. Third, mediators who are well-trained to mediate cases involving self-represented litigants increase litigant and judicial confidence in the process. Programs must publish more consistent and reliable data before further themes can be deduced.
Hopefully, this study prompts others to research how courts can design more effective mediation programs for small claims litigants, many of whom come to courts seeking access to problem-solving systems. In the ADR community, I hope our goal is to provide litigants and mediators alike with satisfying experiences.
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