An anecdote, typical of today’s norm in a random conflict scenario:
A potential client contacted me for assistance in a matter she needed to respond to in a small claims court. I told her I was not an attorney. She said she did not need an attorney; she needed guidance from a trusted source, and I had been referred. I told her I would listen to her needs and direct her to a course of action or a referral I felt was best for her particular needs.
The situation was simple. The potential client owed money on a defaulted lease. She had offered to pay in full. The problem: The claimant was not satisfied with full payment, and was asking for personal damages above what was owed. I offered to approach the claimant and suggest mediation would be in both participants’ interest. This approach was rejected by the claimant, and the matter went to court. I repeated I was not an attorney, and suggested advice from one, which was also rejected. I told her to be prepared to write a check fulfilling her offer to make the other party whole. What I did not get was the rest of the story.
The claimant was a jilted lover, and the lease was defaulted based on the failed relationship and the respondent vacating halfway through the lease term. In court, the claimant attempted to state she was devastated due to the relationship blowback, only to be totally shut down by the judge, and rightfully so. The judge said no damages would be considered since they were not material to the court. The judge also reduced the amount needed from the respondent to satisfy the claimant due to lost wages for the time spent in court based on the claimant’s initial refusal of the respondent’s offer. The claimant left angry and felt unheard. The respondent wrote a check and was relieved to be done with the conflict. So much for the norm.
Mediation was the better venue for this conflict. The participants could have addressed their feelings in private, apologies would have been possible (but not required), and the offer to compensate would have been resolved, resulting in a ‘win-win’ agreement.
Lessons abound here. First, courts are not counselors, although they may refer one. Two, judges (and attorneys) may only act on material facts pertinent to a conflict, and the results are meant to skew toward the more believable party. The main thrust of this is how the system works, with the claimant being required to prove their case before any need for respondent action. Finally, in small claims court, the documents and material facts are the only things considered as proof. Personal feelings, often the catalyst for the court action, are irrelevant.
If mediation was more understood as a venue for primary conflict resolution, cases such as this (with millions of potential variants) could be handled privately and quickly, with two satisfied stakeholders. The barrier to understanding is the contemporary focus on the competitive nature of winning or losing, with everyone being convinced they should and will win. Every time I check, competition has been, is, and will always be a 50-50 proposition, with court proceedings being the ultimate competitive venue most normal people face. Someone wins, someone loses. Unless the court process creates two losers, which is the perception of many participants in the process. Mediation is the only avenue to a win-win scenario.
Credits: Buddy Thornton