Finding $ + ? = :-) in Small Claims Court

By Laura Melton Tucker, April 18th, 2009

Do you remember the first time you saw an emoticon – probably well before you knew it was called an emoticon? I don’t know about you, but for me, seeing my first 😉 evoked feelings of relief (finally, a way to express that piece that had been inexpressible), mixed with delight (how clever) and wonder (what took so long for someone to think of this?). Well, what the emoticon did for the written word, mediation has done for the small claims court. Before mediation, plaintiffs and defendants stood before a judge and told their story, but the subtext of the story…how they felt about what went wrong, how the problem affected them…went unreported. For every small claim dollar amount owed or not owed, there was another layer to the monetary transaction – the feelings behind the intentions and expectations of the people involved in the dispute – that didn’t get addressed. In short, without mediation, there was no emoticon to go with the dollar sign.

Of course, the emoticon doesn’t make an appearance at every mediated small claims case. Sometimes the parties involved choose to stay focused on the dollar signs – but at what cost? A perfect case in point was a recent small claims case between family members. One family member had filed a claim against another, and nothing said at the mediation table could persuade the filer of the claim, the plaintiff, to settle for less than the amount of the claim. The family members left the mediation without an agreement, more upset with one another, it seemed, than when they came in. I stayed to watch the case tried, curious to see if the emotional dimension of this unusual case would be addressed in court. It was not. The law that would decide the case was not sensitive to the family relationship at the heart of the dispute. I wondered if the judge’s decision further fractured the family. I couldn’t help but question how differently things might have turned out if the family had used the mediation table to try to better understand one another.

But there are many more situations where relationships are preserved as a result of the mediation process. I remember one case when the two parties entered the mediation room and sat side by side. If the table had been small and round this might not have been significant. Our courthouse mediation space, however, is a jury room, with a long, imposing conference table, so their choice to sit together was a measure of their high regard for one another. It turned out that though they disagreed about how much money one owed the other, they didn’t disagree that money was owed. Their stories were involved; they needed a piece of paper to map out events with x’s and arrows, but by the end of the hour they had a plan and left with their business relationship intact. The process was as much about explaining their different perspectives as it was about arriving at a settlement.

I don’t want to characterize all small claims mediations as either successful or failed “love fests.” In fact, in a future blog, I’ll talk about some of the cases where the transformative mediation model is problematic in small claims court. But, those cases don’t override the success of the many that resolve to the participants’ mutual benefit. The takeaway is that while dollars bring people to court, it is the emotional component of the people’s stories that often keeps them talking at the table. When it works, the mediation process lets the emotional content factor into the bottom line, which is rarely just about dollars.

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