Mediation Fits (and Lowers) the Bill

Disputants are more likely to comply with a negotiated solution than with a judge's order

ALTHOUGH I have mediated over 500 disputes filed in small claims court, with dollar values ranging from $30 to $3,000, I have yet to encounter a "small" claim.

Small claims courts were chartered with the mandate to provide speedy, informal, and just resolutions of disputes involving less than $3,000 (in Indiana). This is our country's most basic formal forum for dispute resolution. Yet the court is a challenge for first-time users. The judge, it seems, is not really interested in their point of view, and they may not understand the legal merits upon which the judge decides the case, especially if practical considerations appear to have been ignored.

Mediation, a collaborative, agreement-based process, offers beautiful solutions to such problems. Since the mid-1970s, growing numbers of courts, cities, and states are encouraging disputants to at least try this nonadversarial approach before proceeding to trial. In mediation, people are able to discuss their case privately. The mediator facilitates opportunities to save face, to apologize, to negotiate, to compromise, and to generate creative, appealing options.

If the parties identify a resolution, it must be mutually agreeable. If they fail to resolve their dispute, they have lost nothing and, in fact, have gained a greater understanding of what to expect next.

About 4 out of 5 cases referred to mediation are resolved by the agreement of the parties. Mediated agreements are roughly twice as likely to be fulfilled as court-ordered judgments. Disputants experience greater satisfaction in mediation than in the adversarial process. When the court values these results and the extra hours afforded to the judge, they know the cost (typically from $40 to $120 per case) of doing mediation is justified.

Most cases involve more than just money. Mediators must understand people who say it's not the money, but the "principle of the thing." Low dollar amounts can be as difficult or more difficult to resolve than large dollar disputes, because people think, "What have I got to lose?"

Since most disputants will not have engaged in mediation before, the mediator must serve as educator: finding ways to teach someone who's angry to negotiate instead of pounding the bottom line; reorienting a disputant who slanders the other party.

Because small claims mediation tends to be very dynamic and immediate, it can also be forgiving when the mediator heads down the wrong path. If the parties appreciate the mediator's scramble to get things back on track, their own efforts often increase.

When a court values mediation, it advocates collaboration and agreement, de-escalates conflict, and discourages adversarial positioning and tactics. The "Mediation Story," below, is just one example of how it can resolve serious disagreements. The long-term benefits to the community are invaluable.

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