If you’re convinced that your opponent is totally unreasonable, you may wonder why you should waste time mediating. But experience shows that when the parties to a Small Claims Court case voluntarily agree to mediate, the overwhelming majority of disputes are settled. Even when people who don’t want to mediate are forced to go through the process, mediation gets results: In Maine, where judges have the power to order that cases go to mediation, about 50% of the mediated cases settle.
Settlement is especially likely when, deep down, one or both parties want to arrive at a solution that is at least minimally acceptable to the other party. This is particularly common in disputes between neighbors or small business people who work in the same area and really don’t want the dispute to fester.
Mediation has other benefits, too. According to a 1992 study by the National Center for State Courts, people who agree to mediate their cases are more likely to be satisfied with the outcome than are small claims litigants who go directly to court, . One big reason for this is that people who arrive at a mediated settlement are more likely to pay up than are people who lose at trial.
Mediation isn’t a good idea in every case. If you are determined to get every penny you are asking for, and you don’t have an ongoing relationship with the other party, bypassing mediation and going directly to Small Claims Court (except in the few places where mediation is mandatory) makes the best sense.
For example, let’s say you moved out of your apartment and left it undamaged and spotless, but the manager made up a bogus reason to avoid refunding your $1,500 deposit. You could well decide that proposing mediation is a waste of time, because you are pretty sure that in court you’ll win the entire $1,500, plus a $500 penalty, as provided by your state’s rental deposit law.
If you do want to mediate, how can you get a reluctant opponent to the table if mediation isn’t mandatory? Mediators can help with that, too. Typically, as soon as you notify a local court-sponsored or community mediation program that you would like to try mediation, (notification is often automatic with a court-sponsored program), someone from the mediation program will contact the other party and try to arrange a mediation session. They have lots of practice at convincing reluctant people to sit down at the bargaining table.
If you’re the one being sued, or you’ve received a letter threatening suit, should you ask for mediation? The answer is almost always a resounding yes, if you have a defense to all or part of the plaintiff’s claim, or believe that while the plaintiff may have a decent case, he is asking for too much. You really don’t have anything to lose.