Mediation of small claims should be done in an informal manner that permits the parties to express their disagreements and then guides them beyond that point to explore possible solutions.
Commentary
The District Court Special Committee to Study Alternative Means of Dispute Resolution has offered some suggestions for mediation in the courts. Similar considerations apply to dispute intervention:
When disputants elect to mediate their dispute, their choice should be an informed one. They should understand the mediation process, its purpose, and the details of the judicial alternative for resolving their dispute. The impact of their decision should also be explained. They should be notified that, irrespective of their initial decision to mediate their dispute, they may have a court hearing....
At the commencement of a mediation session, the mediator should explain that he is not a Judge . . . and that the proceeding differs from a trial. Throughout the process, he should not find fault with any of the disputants, but should assume the role of an objective third party in assisting the disputants to reach an agreement. He should not accept as accurate any disputant's version of a contested issue and should never take sides. Further, he should act as a referee, controlling . . . outbursts and directing the parties to discuss the disputed issues.
As the mediation session progresses, the mediator's role changes. At first, the mediator serves as a confidant. He listens to each disputant relate his version of the controversy and tries to control interruptions and interjections by the other disputant. The rendition of the cause of the quarrel is beneficial for two reasons. The disputants have a need to tell a neutral third party why they have been wronged.... In addition, the mediator needs to learn some background information about the controversy.
Once disputants have aired their grievance, the mediator must assume a more active role in trying to isolate the areas of agreement and disagreement. Some specific questions may be asked to clarify the nature of the dispute.... Once the contested issues are discerned, the mediator should encourage the disputants to discuss them further.
Next, the mediator must play an active part in discerning whether a mutually acceptable solution can be reached. The mediator may ask each disputant how the dispute may be resolved. If that tactic proves ineffective, it may be necessary for the mediator to speak with each disputant privately. The use of the caucus technique will enable the mediator to learn each party's "bottom line." Privy to this information, the mediator may guide parties to reach a mutually acceptable agreement when the disputants reconvene....
The mediator may make suggestions and describe alternatives. The disputants may demonstrate an unwillingness to compromise. Symbolic gestures...as well as verbal expressions of dissatisfaction may indicate that an impasse has been reached....
Frequently the disputants will continue discussing their differences and will reach an agreement.... At the conclusion of the mediation session, disputants should be notified of the follow-up procedure and their options should there be a breakdown in the agreement.
Special Committee Report at 19-21.
It should be noted that the "caucus" technique, i.e. discussing the matter separately with each party, is a sensitive one. It may lead to an impression of favored treatment. As a rule, when caucusing is done, it should be done with both parties.
Mediation and dispute intervention sessions should not be recorded or participants sworn. Other procedures are in the magistrate's discretion, "consistent with the achievement of a voluntary resolution of the dispute." Uniform Magistrate Rule 4 (c).
It is normally appropriate for a mediator to communicate the results of mediation in writing to the clerk of the small claims session. Supreme Judicial Court Rule 1:18, Uniform Rules on Dispute Resolution, Rule 7(g). If the mediation attempt has been unsuccessful, however, the mediator may not report agreed facts or stipulations which the parties have reached, in order to simplify issues for trial, unless both parties give their permission. Supreme Judicial Court Rule 1:18, Uniform Rules on Dispute Resolution, Rule 6(f) and 9(h). At the conclusion of a dispute intervention, the housing specialist may communicate to the court his or her recommendations, a list of those issues which are and are not resolved, and the housing specialist's assessment of whether the case will go to trial or settle, provided the parties are informed in advance of the session that such communication will occur. Supreme Judicial Court Rule 1:18, Uniform Rules on Dispute Resolution, Rule 6(f)(iv). If the mediation or dispute intervention has resulted in a voluntary agreement, it should be reduced to writing and signed by the parties. Unless the interests of justice would not be served thereby, the clerk of the small claims session then enters judgment and a payment order in the case in accordance with the agreement. Uniform Magistrate Rule 4 (e). Each party must be given a copy of the written agreement inasmuch as the agreement "frequently serves as a reminder to the disputants and demonstrates their good faith," Special Committee Report at 21. A successfully settled case should always be reduced to an agreed-upon judgment and payment order as this will facilitate enforcement proceedings should they become necessary. Uniform Magistrate Rule 4 (e) and (f).
If a matter shows promise for resolution by mediation or dispute intervention, but final agreement cannot be obtained in a single session, it may be continued for further sessions in compliance with the court's case management policies. With the agreement of the parties, a court may also schedule mediation sessions before the date set for trial if both parties' willingness to mediate is known in advance. Repeated court appearances should be minimized, however, and therefore courts should routinely schedule mediation or dispute intervention sessions on the same day as the small claims session. A simple claim that cannot be successfully mediated or resolved through dispute intervention should normally proceed to trial immediately.