The courts should provide mediation services and encourage small claims litigants to take advantage of mediation as a possible substitute for trial.
Commentary
Crucial to the fair resolution of a small claim is the determination whether the parties need the services of a mediator or that of an adjudicator, whether they can reach a solution together with some assistance and prodding or whether nothing but an "outside umpire's" call will end the matter. Clerk-magistrates and designated assistant clerk-magistrates are encouraged by statute and rule to make their services as mediators available. See G.L. c. 218, s. 22; G.L. c. 221, ss. 62B, 62C (d); Uniform Magistrate Rule 4.
Clerk-magistrates and assistant clerk-magistrates who offer their services as mediators should first complete basic mediation training. A magistrate who has acted as a mediator should not thereafter rule on any motion or preside over any trial or enforcement proceeding in the same small claim. In the Housing Court, housing specialists can assist parties to identify areas of dispute and resolve their differences through the process of dispute intervention. Housing specialists, clerk-magistrates and assistant clerk-magistrates who conduct mediation sessions must receive approval as a dispute resolution program from the chief justice of the applicable department. See Supreme Judicial Court Rule 1:18, Uniform Rules on Dispute Resolution, Rule 2 (definition of "program"), 4(a) and 6(a).
It is obvious that successful mediation and dispute intervention help the court by reducing the number of small claims requiring a contested trial, but mediation and dispute intervention have many positive benefits to litigants as well. Because mediation and dispute intervention allow parties to retain control over the outcome of the dispute, they often produce more satisfying results than adjudication and a greater commitment to maintaining the agreement. Mediation is even more informal than a small claims adjudicatory hearing and often allows parties to resolve their disputes with greater privacy and speed than adjudication. It allows parties to avoid all-or-nothing solutions, and, if offered in the courthouse on the day of trial, makes it clear to parties that they have the option to proceed directly to a trial if they are unable to reach agreement in mediation or dispute intervention. Finally, mediation teaches people who are in an ongoing relationship (such as families, landlords and tenants, and business associates) techniques that will assist them in maintaining the relationship and in dealing with future conflicts.
A clerk-magistrate who provides mediation is bound by ethical standards for neutrals set forth in Supreme Judicial Court Rule 1:18, Uniform Rules on Dispute Resolution, Rule 9. A clerk-magistrate has very limited authority or ability to redress unequal bargaining power between the parties because of financial means, education, or other social factors, but a clerk-magistrate and must terminate mediation if he or she believes that continuation of the process would violate any of the ethical standards. See Supreme Judicial Court Rule 1:18, Uniform Rules on Dispute Resolution, Rule 9(i).
Although mediation of small claims is strongly encouraged, courts must bear in mind the statutory limits of their mediation authority. A small claim may be submitted to mediation or dispute intervention only "with the agreement of both parties" and any action "which is not resolved by agreement may, at the request of any party, be heard" for adjudication. G.L. c. 218, s. 22. The statutory scheme provides for mediation at the option of the parties, not for a system which is mandatory. See Supreme Judicial Court Rule 1:18, Uniform Rules on Dispute Resolution, Rule 6(d).
Although not specifically provided for by statute, many courts successfully utilize the services of qualified unpaid volunteer mediators. A volunteer who understands the role and the limitations of the mediator function can render an important service to the court and the community. Courts may attempt to obtain the services of volunteer mediators through a community mediation program, the Massachusetts Office of Dispute Resolution, a university-run mediation program, or some other comparable group. Before accepting the services of a volunteer mediator, the court must ensure that any such volunteer mediator is affiliated with a program which has been approved by the chief justice of the applicable department. See Supreme Judicial Court Rule 1:18, Uniform Rules on Dispute Resolution, Rules 4(a) and 6(a).