In appropriate cases, the court may facilitate a settlement short of trial.
Commentary
Even when the parties have not requested mediation, the court must initially make a determination, similar to the exercise undertaken by a mediator, as to whether the parties are actually demanding a judgment or are essentially utilizing the small claims session as a place to discuss disagreements and arrive at informal solutions. Often the parties may not be able to immediately articulate what they are asking of the court; the clerk-magistrate or judge must help them clarify their positions.
Obviously, settlement and adjudication involve two very different processes, and the court should clearly understand its role in each. In a settlement, the court's primary goal is to help the parties reach a conciliation and agree to a specific, mutually acceptable result. If, on the other hand, the court is adjudicating a dispute, its goals are to provide due process and to render a decision that is correct under substantive rules of law. The court may wish to point out to the parties that there are at least three essential aspects of adjudication that are dramatically different from the mediation and settlement processes:
- a third party, the adjudicator, is given coercive power;
- each party usually obtains only a "win or lose" decision; and
- decision making is focused narrowly on the immediate matter at issue, as distinguished from a concern with the underlying relationship between the parties.
Where it becomes clear that the parties will not, or will no longer, work towards a settlement, the court must consciously change roles from conciliator to fact finder. To prevent misunderstanding, it is important that the parties note this change of function. The court must explicitly communicate to the parties that once the case moves into an adjudication phase their roles also change. The parties must understand that they are now operating within an adversarial context, and that they must marshal whatever evidence and arguments they wish to present to the court.
The societal importance attached to criminal matters and civil cases of a higher dollar amount should not diminish the allocation of attention and time spent in achieving a full and fair hearing for small claims litigants who are insistent upon trial rather than negotiation.
Unless the interests of justice would not be served thereby, any settlement agreement should be entered as a judgement, with a payment order, if appropriate. Uniform Small Claims Rule 7(a), as recently amended.