Increasing Referrals to Small Claims Mediation Programs

Guest writer Heather Scheiwe Kulp, Harvard Negotiation & Mediation Clinical Program at Harvard Law School 

She will be presenting at this year's annual ACR-GNY Conference June 20th [more here]

My favorite part of new mediator training is watching the attendees discover the potential value of mediation. They nod knowingly when they realize how brainstorming creative options based on parties’ real interests may change the dynamic of winner-takes-all, money-is-everything court battles.

Eager new mediators crave experience, not only for its own sake, but also so they can use their skills to serve people in conflict. One of the most common venues for new mediators to gain such experience is small claims court. Litigants, often without attorneys and seeking what the court deems as minimal claims, are referred to these mediators, given a certain period to resolve the dispute, then sent back to court for a trial if the dispute cannot be resolved in mediation.

Though the volume of these cases has grown larger with the recession, few studies have focused on understanding the process that encourages small claims cases to be referred to and settle in mediation. Perhaps this is because the court sees such claims as minimal (though the dispute and the money are significant to the parties). Perhaps it is because we often send our newest, likely unpaid, mediators into these settings. Yet, small claims mediation programs offer an insightful picture into court dispute systems design; how does a court manage the disputes of a significant number of litigants who seek access to justice in a system they don’t understand very well?

To write this article, I examined publically-available statistics from at least one small claims mediation program in each of the 50 states. I also outlined how each of these programs referred cases into mediation. Categorizing similar types of referral systems, I developed six referral models:

• ADR Required, Parties Choose Process

• Mediation Ordered or Suggested at Filing, Parties Mediate Outside Court

• Mediation Required, Must Occur at or Before Hearing

• Mediation Ordered or Recommended by Court at Hearing

• Mediation Suggested by Court, Parties Choose and Mediate Outside Court

• Mediation Suggested by Court, Parties Choose and Mediate at Hearing

I then analyzed whether there were statistical patterns in each models’ representative programs. No “best” type of referral emerged. Certain models offer benefits to programs dedicated to providing greater access to mediation services for all small claims litigants. Other models offer benefits to programs that intend to send to mediation the cases most likely to settle. Still other models are most effective when all parts in a court system are dedicated to promoting mediation, no matter the outcome.

The models suggest common themes for providing greater access to justice. First, the earlier a referral is made, the greater likelihood the case will settle. “Early” can mean before a case is filed.  Second, basic education from an authority figure, like a judge, leads more litigants to try mediation. Education means more than telling litigants mediation is available; it involves explaining what mediation is and what some of its benefits may be. Third, mediators who are well-trained to mediate cases involving self-represented litigants increase litigant and judicial confidence in the process. Programs must publish more consistent and reliable data before further themes can be deduced.

Hopefully, this study prompts others to research how courts can design more effective mediation programs for small claims litigants, many of whom come to courts seeking access to problem-solving systems. In the ADR community, I hope our goal is to provide litigants and mediators alike with satisfying experiences.

Heather Scheiwe Kulp is the Harvard Law School Negotiation and Mediation Clinical Program’s Clinical Fellow. Prior to joining HNMCP, Ms. Kulp was a Skadden Fellow with Resolution Systems Institute/The Center for Conflict Resolution in Chicago. There, she partnered with courts and government agencies to develop small claims, foreclosure, and other mediation programs for low-income litigants. She has consulted with multiple states, the Uniform Law Commission, and the Department of Justice about best practices in foreclosure mediation. Her work has been published by the American Bar Association Dispute Resolution Section, the Illinois State Bar Association, Wipf & Stock, the Los Angeles Times, the Chicago Tribune, the Minneapolis Star-Tribune, ACResolution Magazine, Cardozo Journal of Conflict Resolution, and the Arkansas Law Review (forthcoming Spring ’13). Ms. Kulp is a graduate of Northwestern University School of Law and Saint Olaf College. Prior to attending law school, she founded and directed a not-for-profit alternative magazine for young women, Alive Magazine.