Court or Mediation? How to decide?

Sara Barnes

Lead mediator

Some in the court room who are waiting for District Civil or Small Claims cases are thinking, I've got a good case, I'm going to win. When we offer them mediation, there are some who take us up on our offer. The mediators say to both, "Its a voluntary process. Everything you say is confidential and the mediators are neutral. Its up to you and the other party to come to a self-determined agreement. The mediators will help you write it up and the court can enter it as a judgement if that is what you wish."

Mediation is an empowering process--those involved use their own ideas about fairness and negotiate with each other. The mediator guides them through the interplay. Those involved in the conflict decide how to settle the matter. Usually the parties are able to come to a mutually agreeable settlement. We work with the goal of a win-win outcome.

In more cases than we would like to see, though, the parties reject mediation. They say something like, I know I am going to win. I have a good case. Its airtight, so I"ll just let the magistrate or judge decide because I know they will decide for me. And I will win. A win-lose concept.

Yet when we check back later, we see that many of these cases were decided in exactly the opposite way-- and that by rejecting mediation the party gave up their chance at a more favorable outcome. Why is that?

When two people of relatively good intentions try to figure out what's fair--its based on their own ideas. Sharing those ideas can be illuminating. Sometimes the previous poor communication and misunderstandings can be worked out quickly just by creating a mediation space to really listen to each other. The parties themselves, the experts in the situation, can come a mutually satisfactory outcome together. It takes time and willingness to listen and negotiate. But it works.

When cases come to our office, in advance of court days; or if we provide mediation in the court setting, parties do not lose their rights to be heard in court. If no agreement can be crafted in mediation, then parties can still go to court and present their case.

What does the court do? They judge or magistrate applies the law to the case as it is presented. Those in court may have little understanding of how the law has to be applied and may not know that what may seem to them to be obviously unfair, is found in the favor of the other party. If parties in a dispute want to leave the outcome in the hands of the court, and if they are willing to possibly lose everything, then starting out in district civil court or small claims make sense.

We at MVMP, along with the judge and clerk-magistrate, always suggest using mediation services first. We believe in the power and benefit of self determination and have found that mediated agreements can have other positive and uplifting effects for those who participate. In the end, those in mediation usually find that it is an empowering process. Maybe frustrating and emotionally draining, but an overall strong and meaningful experience. For many, going to court can seem dis-empowering.

Our hope, of course, is for these cases to come to the Mediation program long before they end up in court. Call our office if you can't work it out yourself. "I tried to mediate it myself" was said by a defendant in court last month. This statement shows a misunderstanding. Mediation involves a neutral and qualified third party. As Judge Barnes, our new District Court Judge says, "If you tried to mediate yourself, you did the opposite of mediation. You can't do it yourself, you need to use the mediators. They are the best in Dukes County and they know how to help."

January Mediation Musings

Building Community:

Talking about our Conflicts at Work

It’s a snowy, icy morning and the roads were difficult. Stomping the snow off our feet we greet each other. "You made it!" "Get some coffee and warm up." " I'm waiting to hear what happened with that situation from last week." "How is your son feeling?"

The greetings come from the cohort members who have been meeting together every Tuesday morning before work. Its the seventh session of the course and the members have decided to add two extra sessions on. "We need all the help we can get. And I get a lot from these discussions," said one participant.

This group has built a supportive community, talking about a topic that many shy away from: workplace conflict. Every Tuesday, a member presents a case study focused on a conflict at their work. They describe the situation, suggest what kind of feedback they are seeking and listen to the ideas of the other cohort members. With kindness, participants point out conflict management tools that might be helpful, notice patterns, suggest rephrasing or improved body language. The case study presenter leaves with lots of feedback and ideas to try out.

These are all supervisors, managers, business owners or staff members who want to improve how they handle conflicts. We use a self help text to pick up new ideas and I, as the facilitator, move things along and teach new concepts. But the glue that holds the whole thing together, is the individual stories and dilemmas that we all share with each other.

At the beginning of the course, we pledge confidentiality throughout the course and beyond, knowing that privacy is so important on this small island. Side conversations and partnerships arise. "Its amazing how, even though we are all in different businesses, we all are having the same problems," pointed out one participant.

This week one of our members shared their successes, following up on a situation described previously. "I kept quiet, I listened. I really tried to curb my judgement. And I didn't take it personally," The group gives lots of encouragement and congratulations. We know how hard it is to change habits and adopt new practices. And now we know its easier to do when you have a cadre of others who are working to do the same thing.

As the facilitator, I too gain new insights. I may have taught conflict resolution over many decades, but there is always so much more to learn and think about. Its an honor to spend my Tuesday mornings working with this group of Island leaders who are working to add more tools to their conflict resolution toolbox.

Sara Barnes

Lead Mediator