A volunteer mediator on the moment a case is worth settling

Many courts run a mediation program for small claims, staffed by trained volunteers who meet the parties before the case is heard. The following is condensed from a conversation with someone who has done that work for about twelve years in a suburban county. She asked not to be named, since she still sits.

On what people are actually arguing about

What proportion of the cases you see settle?

A good number. More than people expect. And most of them settle in the first twenty minutes, once both sides have said the thing they came to say.

What is the thing they came to say?

Usually that they were treated badly. Not that they are owed a specific figure. By the time somebody has filed a case and taken a day off work, the money is standing in for something else, which is that nobody listened to them.

A surprising number of matters resolve for less than the amount claimed once the person has been heard by someone with no stake in it.

Does that mean the money is not real?

No. The money is completely real and I never suggest otherwise. But if you ask someone what would make this right, and give them a minute, the answer is often not the number on the form.

Sometimes it is an apology and half the money. Sometimes it is the work finished. Those are outcomes a judge cannot order and I can write down.

On timing

When is a case worth settling?

The moment you can state the other side's best argument in a sentence and it does not sound stupid to you. That is the test. If you can hear their case and it has something in it, you are looking at real risk, and a certain outcome today is worth more than a maybe in six weeks.

And when should someone not settle?

When the offer is below what it costs them to be there. When the other side will not put it in writing. And when they are being asked to agree to something they do not understand, which happens, especially with releases. Never sign a release you have not read because a room is tense.

Do people settle too early?

Occasionally, and it is nearly always because they were unprepared and frightened. Somebody arrives with a shoebox and no idea what they can prove, hears a confident opponent, and takes very little. That is a preparation failure rather than a mediation failure. The people who do well are the ones who know what is in their file.

The two questions I ask everyone are what would make this right, and what happens to you if the judge finds against you entirely. Almost nobody has thought about the second one before they walk in.

On what parties get wrong

The most common mistake?

Arguing about who is a good person. It comes up constantly and it decides nothing. The other one is bringing everything and nothing: four hundred pages, no dates, and the one document that would settle it is not in there.

What would you tell somebody preparing?

Three things. Put your papers in date order and number them. Write one page saying what happened and what you want, and be able to hand it over.

And decide, before you arrive, the lowest number you would accept and walk away satisfied. Write it on the back of that page and do not tell anyone. It stops you from making a decision on adrenaline.

Does that number ever change during the session?

It should, if you learn something. If they produce a document you did not know about, your number moves. That is not weakness, that is new information. What should not move it is somebody being loud.

On what a good outcome looks like

Do both sides usually leave happy?

No, and I would be suspicious of a process where they did. A good settlement is one where both parties are mildly dissatisfied and both are relieved. That is the shape of it.

Anything you insist on before people sign?

It has to say who pays what, by when, and how. Not soon, not next month. A date and a method. And what happens if it is not paid, which in our court means the agreement can be entered as a judgment. Agreements that are vague about payment come back, and then everybody has wasted a day.

Do you see the same kinds of cases over and over?

Four or five, endlessly. Work paid for and not finished. A deposit on something that never arrived. Security deposits. Vehicle repairs where nobody agreed the price in advance. And neighbors, which are the hardest ones because they still have to live next to each other on Monday.

Are the neighbor cases different to handle?

Completely. In a commercial matter you can settle for money and both parties walk away. Neighbors cannot walk away, so the agreement has to cover behavior going forward, not just a payment. We spend the time on what happens next spring when the tree drops again. If you only fix this year, they will be back.

What do you wish more people knew before filing?

That the courthouse is expensive even when the filing fee is not. A day of your time, a day of theirs, the stress in between.

If a phone call at the right moment would have fixed it, the phone call was worth several hundred dollars and it was free. I say that to people afterward and a lot of them agree with me.