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Courtroom "Intake" Speeches For Civil Harassment And Small Claims

by Jack Goetz
August 2010

 

Jack Goetz My pro bono mediation time in the Los Angeles and Ventura Superior Courts has included mediating and supervising the mediation of civil harassment and small claims matters in various courthouses. This often requires delivering five minute speeches to primarily “pro per” litigants awaiting their hearing on the merits in an effort to extol the virtues of mediation as an alternative form of dispute resolution. The success of these presentations depends upon a variety of factors, including the clarity and courtroom presence of the speaker, but it primarily requires that the content of the “pitch” include a “back to basic” approach in utilizing intake and convening theory.

The theory, as applied in these presentations, is something every new mediator learns or should learn in their mediator training. Some of the universally acclaimed principles upon which mediation is promoted as superior to litigation in resolving a dispute, and the order they might appear in a sample speech are: 1) Parties participate in resolving the dispute, 2) Mediation is less costly than litigation, 3) The parties can control the outcomes, and thereby avoid the risk of unfavorable trial outcomes, 4) Potential solutions are achieved with greater speed, and 5) The dispute can be resolved confidentially. While mediators responsible for making the speech may have local variations that include references to the setup of the courthouse mediations or localized process, the genesis of the speech components rests in these reasons and their practical application.

Part of my makeup as a mediator resists rigid structure to any problem, so a limited five minute speech may seem too confining and rigid for a mediation process that often demands our creativity. Nevertheless, in my observation of dozens of these pitches, and the personal delivery of dozens more, brevity best serves the courtroom and the litigants. The number of litigants willing to mediate does not seem to improve with the length of the speech. You will have the additional pressure of a court waiting for you to conclude to commence its calendar, and nervous litigants impatient for the calendar to start or mediation to occur. Therefore, this article serves to articulate the various speech components that are designed to maximize the number of willing mediation participants consistent with a five minute presentation.

Parties participate in resolving the dispute

The best practice is to commence the speech with some words about why the mediator is in the courtroom, including the court support for this methodology of resolving disputes. This gives context for the pitch, and also makes litigants aware that courts are in favor of this kind of party participation. Litigants need to be reassured that the court’s emphasis is on the parties attempting to work it out; if a settlement is not reached, they will still have the same opportunity they had before mediation to have the court hear their case on the merits.

The speech should include the fact that the settlement agreement is court enforceable, since it is not intuitive to the parties that their participation in resolving the dispute has any real legal meaning. Litigants generally lack an understanding of the court process and the underlying law that drives that process. Small claims procedures do not allow lawyers to represent parties, and the vast majority of civil harassment litigants are “pro per.” Mediators recognize that parties lacking representation may not understand that the settlement agreement is enforceable under CCP§664.6. This component also needs a fair amount of emphasis. Here is an example:

Ladies and Gentlemen, my name is Jack Goetz, and the court has asked me to make you aware of the opportunity you have today to mediate your cases. Mediators are 3rd party neutrals who will listen carefully to both parties and can facilitate the process of resolving your cases in a way that serves your interests in a written settlement agreement that is court enforceable. Mediators are different than the court because they will not decide your case. Any settlement agreement that is reached during mediation is voluntary on the part of both parties, and if a settlement agreement is not reached, you will still have an opportunity to have your case heard by the court today. However, the court has found that the majority of cases settle when the parties work with a mediator, and because you know more about your case than anyone else, party participation in the settlement of their cases ensures that the resolution will meet your interests.

Mediation is less costly than litigation

“Free” is one of those words in advertising that attracts people, and it is no different in a courtroom filled with litigants prepared to air their grievances. Some mediators choose to emphasize this point by mentioning what mediators can charge privately for their work. My observations are that this point is not compelling for disputants who, for the most part, are not paying lawyers and are expecting their court hearing to be without charge. Nevertheless, it is important to mention that there is no charge for the mediation. This can be said simply:

I am part of a court/DRPA organization mediation team here today to work with you for free in an effort to help you resolve your case.

Parties can control the outcomes and avoid risk of unfavorable trial outcomes

Mediators making these presentations cannot overemphasize the importance of the parties controlling their outcomes. While the ability to control the outcome is a positive message, mediators often find that the most effective way to communicate this is by using the “stick” part of the “carrot and stick” approach. The consequence of the plaintiff failing to carry their burden of proof in a small claims action is fatal; there exists no right of appeal. Defendants in the same actions may find that the public record nature of a potential judgment may ultimately affect their credit or other out-of-court processes that have impact on them.

Petitioners in civil harassment actions are often unaware of the “clear and convincing” evidentiary hurdle that the statute requires, but there is natural mediator reluctance to mention this in a speech extolling mediation as it may border on giving legal advice and presumptively would give defendants a reason not to mediate. Instead, the focus might be part “carrot” and part “stick;” why pursue an action in which you may not know the law and its effect on your ability to prove your case when, if both parties are already at the point that they don’t want to see each other, they can mediate an agreement that says exactly that. This difficult piece may be said this way:

Through mediation you can eliminate the risk of being caught “off guard” and being ultimately unhappy with the trial result. Very few litigants who come to court are familiar with the law, and the court has to make its rulings based upon the law. Many litigants come to court thinking that they will tell their side of the story and the court will find them more credible than the other party and they will prevail. Plaintiffs/Petitioners run the risk that they can be totally believable but not win their case because they did not carry their burden of proof which is required by the law. Defendants/Respondents run the risk that the court may find them totally credible, but still lose their case because plaintiffs/petitioners have carried their burden of proof. The consequences in each case are unfortunately extreme.

Small Claims version:

Plaintiffs who fail to carry their burden of proof have no right of appeal. Defendants who lose their cases will have a judgment against them that may potentially affect their daily lives, including applications for credit and credit ratings.

Civil Harassment version:

Petitioners who fail to carry their burden of proof will leave the court without getting anything that solves the situation that brought them here. Respondents who lose their case will have a restraining order against them on file as public record. The reality is that however the dispute arose, our experience is that by the time the parties are in court, both are interested in having little to do with one another. That is the beginning of a court enforced settlement agreement.

Mediators are skilled professionals who will listen to both sides carefully and can help you craft a settlement agreement that is court enforceable and meets your interests. It doesn’t cost anything to talk with a mediator today about your case. If you can’t reach a settlement with which you are satisfied, you still have every opportunity to have your case heard by the court. Mediation gives both parties the best chance of leaving the courtroom today with their interests being met.

Potential solutions are achieved with greater speed

Upon first impression, the speed of the solution may seem inconsequential since the parties have convened in the courtroom expecting to get a hearing during that court session. However, small claims and civil harassment calendars are often filled, and litigants who find themselves as a low priority on the calendar may desire the quick opportunity to resolve their case that mediation affords rather than sitting through the entire session until their matter is heard. Some courts provide incentive to mediate by giving priority to litigants that mediate whether they reach agreement or not, and make sure theirs is the next matter heard once the mediation has concluded. Mediation speeches should emphasize length of calendars or court priorities as applicable.

Mediators in small claims courtrooms often address plaintiffs on quick solutions as well, taking advantage of the fact that the road to success may have many obstacles beyond the hearing in court. Those include potential appeals or delays in potential collection efforts. Since this is a plaintiff only point, however, its placement in a five minute speech is secondary to some of the points previously mentioned. One example of this is:

You can see how packed the courtroom is, and many of you may have noted the size of the calendar posted outside the courtroom. I know you have taken valuable time off of work or other endeavors to be here today, and it may be some time before the court calls your case. As a further enticement to get you to mediate your dispute, the court will prioritize your matter and hear it as the next case…once you reach a settlement agreement/whether or not you reach a settlement agreement as long as you mediate in good faith.

The dispute can be resolved confidentially

At this point, party interest may be piqued by the advantages of mediation, but confidentiality and the opportunity to caucus with the mediator provides an excellent final reinforcement of the benefit of the process. Parties without representation are often concerned about dialogue with the other party, and in civil harassment, may genuinely loathe being in the “space.” Mediators generally can facilitate a better and longer opportunity to be heard than court can, but need to ensure that the parties feel safe in expressing themselves. An example of this explanation:

Many of you may find the mediation sounds appealing, but may have concerns about having a direct dialogue with the opposing party. Mediators address that concern by giving the parties an opportunity to meet separately with them in what is known as a caucus. Everything said to the mediator is confidential, meaning it cannot be disclosed to the opposing party unless the mediator asks you for permission to do so…which they will do only if they believe it will move the parties closer to settlement. In fact, everything said during mediation is confidential, and all participants in the mediation will sign a document to that effect before the mediation begins. If your case does not settle, nothing said in mediation can be introduced into the court hearing because it is barred by the confidentiality of the session.

Summation and Asking for Volunteers

Mediators should now be ready to ask for volunteers. It helps to have a calendar of the cases so that as parties volunteer you can quickly reach out to the opposing party to see if they will also agree to mediate. Usually the conclusion includes a short summation of the major components before you ask for participation. A simple conclusion may be:

To summarize, you have an opportunity to work with a professional mediator for free, in a safe and confidential setting, which provides you an opportunity to control the outcome of your case resulting in a court enforceable settlement agreement. If you don’t get something that satisfies your interests, you still have an opportunity to get your case heard today. Since mediation is voluntary, both parties have to be here today and agree to try. Please raise your hand if you are interested and I will ask the other party for their agreement to mediate as well.

Putting it all together, you now have an opportunity to give an effective intake presentation in five minutes that facilitates litigant understanding of the benefits of mediation. Given the overwhelming success of mediations in these cases, you have created the best environment for court novices to get a “win, win” out of what otherwise could be a very disheartening experience for them. We will conclude this brief piece with the speech in its entirety:

Ladies and Gentlemen, my name is Jack Goetz, and the court has asked me to make you aware of the opportunity you have today to mediate your cases. Mediators are 3rd party neutrals who will listen carefully to both parties and can facilitate the process of resolving your cases in a way that serves your interests in a written settlement agreement that is court enforceable. Any settlement agreement that is reached is voluntary on the part of both parties, and if a settlement agreement is not reached, you will still have an opportunity to have your case heard by the court today. However, the court has found that the majority of cases settle when the parties work with a mediator, and because you know more about your case than anyone else, party participation in the settlement of their cases ensures that the resolution will meet your interests.

I am part of a court/DRPA organization mediation team here today to work with you for free in an effort to help you resolve your case. Through mediation you can eliminate the risk of being caught “off guard” and ultimately unhappy with the trial result. Very few litigants who come to court are familiar with the law, and the court has to make its rulings based upon the law. Many litigants come to court thinking that they will tell their side of the story and the court will find them more credible than the other party and they will prevail. Plaintiffs/Petitioners run the risk that they can be totally believable but not win their case because they did not carry their burden of proof which is required by the law. Defendants/Respondents run the risk that the court may find them totally credible, but still lose their case because plaintiffs/petitioners have carried their burden of proof. The consequences in each case are unfortunately extreme.

Small Claims version: Plaintiffs who fail to carry their burden of proof have no right of appeal. Defendants who lose their cases will have a judgment against them that may potentially affect their daily lives, including applications for credit and credit ratings.

Civil Harassment version: Petitioners who fail to carry their burden of proof will leave the court without getting anything that solves the situation that brought them here. Respondents who lose their case will have a restraining order against them on file as public record. The reality is that however the dispute arose, our experience is that by the time the parties are in court, both are interested in having little to do with one another. That is the beginning of a court enforced settlement agreement.

Mediators are skilled professionals who will listen to both sides carefully and can help you craft a settlement agreement that is court enforceable and meets your interests. It doesn’t cost anything to talk with a mediator today about your case. If you can’t reach a settlement with which you are satisfied, you still have every opportunity to have your case heard by the court. Mediation gives both parties the best chance of leaving the courtroom today with their interests being met.

You can see how packed the courtroom is, and many of you may have noted the size of the calendar posted outside the courtroom. I know you have taken valuable time off of work or other endeavors to be here today, and it may be some time before the court calls your case. As a further enticement to get you to mediate your dispute, the court will prioritize your matter and hear it as the next case…once you reach a settlement agreement/whether or not you reach a settlement agreement as long as you mediate in good faith.

Many of you may find the mediation sounds appealing, but may have concerns about having a direct dialogue with the opposing party. Mediators address that concern by giving the parties an opportunity to meet separately with them in what is known as a caucus. Everything said to the mediator is confidential, meaning it cannot be disclosed to the opposing party unless the mediator asks you for permission to do so…which they will do only if they believe it will move the parties closer to settlement. In fact, everything said during mediation is confidential, and all participants in the mediation will sign a document to that effect before the mediation begins. If your case does not settle, nothing said in mediation can be introduced into the court hearing because it is barred by the confidentiality of the session.

To summarize, you have an opportunity to work with a professional mediator for free, in a safe and confidential setting, which provides you an opportunity to control the outcome of your case resulting in a court enforceable settlement agreement. If you don’t get something that satisfies your interests, you still have an opportunity to get your case heard today. Since mediation is voluntary, both parties have to be here today and agree to try. Please raise your hand if you are interested and I will ask the other party for their agreement to mediate as well.




 
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