Mediation can be alternative to small claims

GOOD TO KNOW
Patricia Hafermann • Benefit Specialist

As we all know, the process of formal legal action – whether as plaintiff or defendant – can be expensive, time-consuming, and most of all, stressful. Even small claims actions – which are generally limited in Wisconsin to claims of $10,000 or less – can be intimidating, stressful, and burdensome. However, in many cases, the stress and expense of formal litigation can be avoided or reduced through the process of mediation.

Mediation, in a basic sense, is the assistance of a neutral, third party in attempting to resolve a dispute. Often, when parties are litigating a dispute (eviction, breach of contract, etc.) they both tend to believe they are in the right and that the opposing person’s or business’s claim has no merit at all. It is often easy for a litigant to lose sight of the bigger picture and dig their heels in. When both parties do this simultaneously, it can result in long, drawn-out court battles. Me- diation can be vitally important as a method for both sides to see the merit of the other’s claims and to receive input from an unbiased, neutral participant. This often leads to resolving claims without the need for a party to argue his or her case before a judge. In small claims actions, where parties are often not represented by attorneys, medicated settlements are often preferred to risking an unknown outcome by leaving the matter up to the court.

Many judges will direct small claims actions to a mediator as a means to determine whether a case can be settled without the need for court intervention. Only if no settlement is reached will a judge then hear the case.

There is no formal procedure for mediation and mediation styles vary. Some mediators will be experts in their respective fields and some mediators will simply be neutral third parties with no specific expertise. Some mediators will listen to both parties’ arguments and try to point out respective strengths and weaknesses in an effort to lead the parties to a mutual common ground and settlement. Some mediators will separate the parties and discuss the case with them privately. Mediators will generally not decide who is right or wrong, but will instead try to get both sides to see the merit in the others’ case. This will often lead to parties realizing that his or her argument is not perfect and will cause the parties to compromise and settle their case.

Mediation does not always result in a settlement, however, and parties are not forced to settle. When no agreement is reached, the case will then proceed to a jury or court trial. However, if an agreement is reached, the mediator will help draft a settlement agreement, the parties will execute it, and the agreement will then be binding and legally enforceable upon the parties.

One of the most valuable as- pects of mediation is getting a party to understand that his or her case may not be as strong as it appears to him or her. In turn, this can lead to more realistic expectations and more practical and effi- cient outcomes. Benefit specialists often act as informal mediators on a daily basis in helping to assist clients understand how their particular facts and circumstances fit into a particular benefit program. By pointing out flaws or strengths in a position, this can help clients understand their rights and whether they are receiving the benefits to which they are entitled.

If you have any additional questions, you may call Pat Hafermann, Elderly Benefits Specialist with the Aging and Disability Resource Center at (920) 467-4076.

Resource: BENSPECtrum May 2014


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