Arbitration & Mediation

Negotiating the Resolution of Civil Harassment Complaints

By Victoria Pynchon

It's good to step into a small claims or limited jurisdiction court from time to time to see how ordinary people's disputes are resolved, usually without counsel. 

Yesterday, as I sat in the small claims department of a local branch court, I wondered why the one-hour court trial I was observing hadn't been resolved in mediation.  Both parties to the fender-bender resulting only in property damage admitted they "hadn't been looking" when one pulled out of a parking spot and the other backed into him. 

The damages didn't require an adversarial process either.  There were quotations for repair on both sides as well as estimates of the vehicle's fair market value.  It was plain that the plaintiff had used comps that weren't truly comparable -- luxury cars vs. his own stripped down model. 

I had to leave before the Court rendered its judgment but I was pretty sure the Plaintiff wasn't going to understand why he'd lost (the result I assumed).  He spoke the language poorly and had a weak grasp of the proceedings going on about him.  It is on occasions like this that I believe mediation is better able to deliver justice than the court is if you define justice as a fair result arising from a fair procedure that all parties understand and are capable of a meaningfully engagement with. 

Before the judgment was rendered, the clerk whispered in the Judges ear that the "mediator is here; with a trainee and a law student."  He took a break to tell the (unrepresented) civil harassment parties that "there is a mediator in Court willing to help you resolve your dispute without charge."  I introduced myself briefly, along with my "assistants" as the Judge told the assembled parties that it's difficult to obtain an injunction (burden of proof:  clear and convincing evidence) but a very bad result for any defendant against whom one is granted.  The Judge did a good job, I thought, in quickly instructing the parties on the "up" and "down" sides of using the adversarial process instead of mediation, assuring them all that they could return to him for a judgment if the matters didn't settle.

These are people, not lawyers, and people's disputes rarely fail to settle when they're able to tell their story in an atmosphere of hope and safety.  When their "opponent" listens to them respectfully for the first time ever.  When they don't feel as if the police officer or court official or social service agency is listening with only half their attention.  They speak quickly to me outside the courthouse door when trying to decide whether to use my free services or have the day in court they've already paid for -- filing fees and costs of service - never a small expense for the people who find themselves here, hopeful and afraid.  They thrust their documentary evidence at me in the hallway.  If they don't get it all in right now I may not listen to them later.  They are strident or trembling; self-righteous or humble, but none of them truly believe anyone is going to actually hear and understand their predicament.  

I suggest they try to resolve the matter by way of agreement.  I assure them that I will not permit them to feel unsafe; telling them they can ask for a break the very moment they begin to feel uncomfortable.   I will follow them out of the conference room and we will talk about what is troubling them right away.  No, now is not the time to tell their entire story but that time is near.  All we have to do is take the elevator up to the next floor where the ADR office and its single meeting room are located.  I assure them again that they can come back to the Court later that day if I cannot help them resolve their dispute themselves.  They are all of the firm belief that they will be back in court.  The other side is "lying," ruthless, malicious, and will will attempt to manipulate me, the mediator. 

Mediation "will never work," they say to a person.  And yet, the woman in the black suit is beginning to seem less threatening, more approachable, more hopeful, than the Judge in the polyester robe.

O.K., they agree.  They will give it a shot.  I'm so earnest, I sometimes feel that they do it for me as much as for themselves.  That's OK, they have no reason to hope yet.  It is enough that I do.  I am undeviating in my faith that when I call upon people's higher angels, they will respond.  I take pride in every individual willing to sit at a table across from their adversary and have a conversation.  Lawyers often won't do it.  Representatives of Fortune 500 corporations demur.  Nations refuse the offer.  Yet these people, nearly defenseless, are  brave enough to sit with the enemy and will, I know, also be wise enough, honest enough, and respectful enough, to take their destiny into their own hands and make a better decision in conversation with one another than any third-party "decider" possibly could.

Tomorrow:  the mediations.

Full post as published by Settle It Now Negotiation Blog on July 23, 2009 (boomark / email).