Have you heard the cliché “a bird in hand is better than two in the bush”? Energies unleashed and applied, I have Defendant offering money today to start settling a claim in mediation at small claims court. It may not be for the amount being asked for by the other side or not under the conditions demanded, but nonetheless its real money, unless the check written today bounces. “Ok, afterwards I can walk down to the ATM and bring you the cash to the entry to the court house.” Nonetheless the offer is rejected in favor of getting a judgment at trial. As mediator should I feel frustrated? What can I do to facilitate another outcome the next time this happens?
To demonstrate, take two parties disputing a purchase/sale of a mule. Although there’s some dispute over the condition of the mule, “Sitting Pretty” is in Defendants hands. Although the agreement is verbal, both sides acknowledge the agreed upon price was $1200. On Defendants side, a typical response is, “I just didn’t have the money to pay. I had medical bills and have to feed the mule and the other 12 animals I own. Here’s what I can do. I’ll pay $200 today and thereafter $200 per month.” Plaintiff says, “No, pay half this month and half the next.” Defendant retorts, “I can’t do that, how about I pay $400 this month and then $200 per month until the debts paid off”? Plaintiff says no deal, let’s go to trial.
One mediator perspective is, I have to continue trying, but something different, because apparently Plaintiff either didn’t consider, listen, hear, or understand, there’s money on the table, take it, protect yourself through the way an Agreement is written, and don’t dismiss the case until your paid off . And, I also dropped the bomb. “If you go to trial all you get today is a judgment. If Defendant refuses to pay, you have to go through a collection process which will consume more of your time and money.” In the case of Defendant I repeated the judge’s admonition, “if no agreement is reached and judgment goes against you, it may affect your credit rating.” No budge on Defendant’s side either. Another mediator perspective is, don’t worry about it, I’ve done my job, it’s not my money or time. If the parties want to be stubborn that’s their problem. Maybe some understanding of the reasons behind people passing up money offers provide clues as to where we should go. Maybe there’s a totally different mediation strategy to utilize which develops a different outcome. You’ll notice I focus on Plaintiff as it’s easier to address.
The most frequent issue, in my experience, is trust. There’s the general, “I, Plaintiff, just don’t trust Defendant.” Such lack of trust and unwillingness to agree, no matter what a Defendant offers, is more common in TRO cases. In TRO cases, the driver most often stated is, concern over safety where a restraining order, once in effect, gives Plaintiff the ability to get the police to respond to violations. Another issue in refusals to accept money is, too many promises made and not kept. Yet another is “no response during all this time and now I want a judgment I can enforce.”
Sometimes highly visible, at times very subtle, but there, is a desire for vengeance or retribution.
Especially in small claims court, the reality behind a refusal of a money offer is hidden in the shadows of the broader relationship between the parties which it is highly unlikely we’ll be able to ascertain, much less resolve. For example, in our case there might be an ongoing dispute between the parties over issues at the stables only really seasoned equestrians would understand in the confines of time limits at court. Perhaps one or more of those issues need to be resolved first, before movement can occur in this dispute.
Am I misguided if I want them to stay focused on the money? Consider, for example, the present value of a payment today versus trying to collect from a recalcitrant Defendant, an economics approach. Or, consider the offer of payment today and a plan to pay off the debt as increasing the likelihood you will get the money owed, which hopefully is a reality.
As a result I am interested in knowing:
Finally, wasn’t there a case in Law School about who owned a horse that was sold, alleged to be lame, escaped, found haven at a third party? Is that case still used? Does anyone know what happened to that horse? Someone in my daughter’s contract class asked the question, only to be reminded by the professor, only he asked the questions. I don’t have to worry about what happened to the mule in my example. As far as I know, “Sitting Pretty” isn’t real.
Joe Stulberg points out examples of what negotiable issues are in a mediation as opposed to mediating parties' emotions and labels.By Joseph Stulberg
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