“All rise!”

The judge enters, walks to the bench, and says: “Good morning, ladies and gentlemen, you may be seated.” A minority of those in attendance are here for the first time. Maybe they’re intimidated by this rite, maybe not. For the majority, including the mediators, it’s just a church-like routine: sit, rise (hiding the crossword puzzle), and sit again.

We’re in Burlington County Superior Court, Mount Holly. This is where cases are heard that fall within the jurisdiction of the Special Civil Part (maximum claim $15,000) of the Civil Division. The majority of claims are actually for $3,000 or less, so-called Small Claims, for which the trial procedures are less elaborate and faster. Mediators treat them all the same and refer to them all as “small claims.”

Judges typically open the proceedings with a brief “speech” (their term), in which they advise litigants what to expect, and what is expected of them should their cases come to trial, i.e., should they fail to settle in mediation. Special emphasis is given to the following:

Litigants representing themselves without an attorney (pro se) are held to the same standards as attorneys.

Monetary awards will be made only to cover monetary losses, not annoyance, frustration, or punishment for discourteous behavior prior to coming to court. Some judges suggest that litigants “check their emotions at the door.”

Supporting opinions by witnesses will be admitted only if the witnesses are present for questioning. All else, including written statements, will be rejected as “hearsay.”

Decisions will be based on preponderance of credible evidence, be it ever so slight.

By order of the New Jersey Supreme Court, all special civil suits must be submitted to mediation.

Enter the mediators, who offer a way to bypass the trial procedures. The judge introduces us as people with life experience, specially trained in settling disputes. (S)he goes on to explain the advantages of mediation: speed, a mutually acceptable resolution, and time payments if agreed on. (The judge cannot order a plaintiff to accept installments.) Litigants are expected to mediate in good faith. One judge used to drive home her point by promising two consequences to anyone unwilling to do so: first, they’d be sent right back to mediation; second, if they didn’t settle then, they’d go to the bottom of the trial list. That could mean several hours waiting, because trials are held on the same day; only rarely does a judge grant a continuance, or postponement. With upwards of 20,000 cases a year to dispose of, they are loath to carry any over.

The judge next calls the cases and in each case asks plaintiff and defendant to stand and identify themselves. In about half the cases, only one party is present. If plaintiff has failed to show, the case is dismissed; if defendant has failed to show, plaintiff is awarded a default judgment. In the latter case, plaintiff still has to show that the claim was reasonable before receiving authorization to pursue payment.

Mediators are trained by court personnel. A typical course of training occupies two full days in class, upon completion of which trainees are assigned to observe actual mediation sessions. Next they are permitted to “co-mediate,” or take an active part. When deemed competent by experienced mediators, they are ready to mediate on their own. I took my training in 2002 and have served on average three mornings a month ever since.

Mediators develop their own styles, but all must subscribe to a code of ethics, whose most important components are impartiality and confidentiality. The first of these seems self-evident, but projecting an impartial demeanor when one party seems so obviously in the right demands self-discipline. A mediator also must not forget that a litigator who seems to be in the right may be judged at trial to be in the wrong, or special circumstances may complicate the issue.

The need for confidentiality seems equally self-evident, but there is an interesting twist: even the judge is not permitted to know about the deliberations in mediation. The reported outcome of any mediation is either an agreement or no agreement, never what was offered and rejected. Otherwise neither party would make an offer, for fear that the other party would use it against them in court as admission of responsibility. If either party refused to negotiate in good faith, however, that fact may be reported to the judge.

Attorneys may be present at mediation together with their clients. Strictly speaking, while permitted to counsel their clients, they can be required to refrain from actual negotiation, or argument, and leave the discourse up to the principals. I personally welcome attorneys, because in most cases they bring a calming influence and help keep negotiations on track. Not all my fellow-mediators feel this way.

If an agreement is reached, it is entered on a standard form, usually by the mediator, and signed by both parties. It is then forwarded to the judge for approval and signature (rarely refused), and copies are given to both parties. The agreement has now become a court order and all are free to leave.

In the absence of an agreement the parties take their place in line for trial.

Here’s my personal style of mediating.

Greet the parties and introduce myself.

Ask whether they’ve been in mediation before. (The majority have!)

If even a single participant is in mediation for the first time, I explain the process: (1) reinforce what the judge has already said; (2) encourage them to compromise rather than risk an adverse ruling; (3) point out that rejecting an offer in favor of putting the matter to the judge may mean going away empty-handed; (4) explain that the judge will not allow a rejected offer to be mentioned at trial — in other words, (s)he will rule on the entirety of the claim.

I point out that an agreement allows both parties to walk away partially satisfied; a trial verdict produces a winner and a loser, and the latter is likely to be resentful.

If either party is represented by more than one individual, I request they choose a spokesperson. However, I don’t require total silence from the others. The objective is an orderly proceeding without inhibiting anyone’s freedom of expression. If an attorney tries to cross-examine the other party, I remind them that trial tactics are inappropriate in mediation. In all cases, I encourage members of each party to consult with each other, in private if desired.

If I feel that either party is being unreasonable or unaware of the consequences of their position, I speak with each separately and in confidence. (The technical term for this one-side-at-a-time conversation is caucus.) Having guaranteed not to tell the absent party the details of our conversation, I feel free to express my concern without embarrassing either side, and they feel free to tell me what they don’t want the other to hear. This is a good opportunity to tell the defendant that losing in court would mean a judgment against them, with possible credit consequences. If either side suggests a settlement in caucus, I ask that they, rather than I, put it on the table when we reconvene — unless they ask me to do so.

I don’t suggest a specific settlement unless requested. If one side asks, “What do you think is reasonable?” I request the other’s permission before answering.

At any time during our conference, I may remind the litigants that I’m not a judge and have no authority whatever, except to keep order. This doesn’t diminish the respect with which all parties, including their attorneys, treat me.

After a successful mediation, the parties often thank me; I tell them the agreement is their doing; and on that note we all part friends. As often as not, they’ll thank me for the effort even if they don’t settle. It’s virtually impossible for the mediator to lose; the ego benefits are considerable.

Early on I kept records and found that my success rate, like that of other mediators, was about 75%. For mediators, special civil court differs in many respects from family court, about which I wrote earlier (Tuesday Morning). Most important, the judge is present and a mediator may watch the trial in any case that has not been settled. (I once took my fifteen-year-old grandson along, with the judge’s permission. He sat in quietly on the mediation and on the trial that followed. His verdict: “Cool.”) In family court the mediators don’t meet the judges, who try the cases elsewhere and often weeks later.

Although special civil court is meant to be strictly, and only, about money, interesting situations arise that prove the parties did not check their emotions at the door. A lawsuit is often the climax of a relationship that has soured progressively due to ignored letters, texts, or emails, unreturned telephone calls, or other slights. In such cases, parties bring a considerable reservoir of anger to court, and telling them to leave it at the door may be asking the impossible. Here skilled mediators can be helpful by, first, reiterating their neutrality; second, giving each party to understand that the other’s position deserves respectful consideration; third, emphasizing that the judge will not allow emotional issues to enter into consideration; and finally, caucusing to give them the opportunity to vent feelings without further stoking resentment. In fact, a skillful mediator is a buffer between warring parties and can, once feelings have subsided, actually produce handshakes between former adversaries.

A mediator needs to understand the basis of the claim and the defense against it. However, when either of the parties begins to present evidence or witnesses, they are reminded that their task in mediation is to convince the other party, not the mediator. I routinely tell the parties that documents, photographs, and witnesses may be offered in court — where they may or may not be accepted into evidence — but are useful in mediation only as a means of negotiating a settlement. Despite the serious nature of the proceeding, there can be a lighter side to small-claims mediation.

A Sikh plaintiff claimed that the defendant, also a Sikh, had not reimbursed him for fuel expenses transporting heavy goods in his truck; the defendant claimed he had paid, but could not produce supporting documents. Instead, he brought his teenage daughter, who carried a book-sized package wrapped in colorful cloth. I asked her what she was carrying, and she said, “The Holy Book.” Why not unwrap it and show us? The Holy Book is unwrapped only on holy occasions (which a lawsuit evidently is not). Whether the hidden object was in reality The Holy Book, her calculus text, or a box of chocolates, only she and her father knew. To my surprise, plaintiff volunteered to drop the case if defendant swore on The Holy Book that he had paid. Defendant swore. Dismissed.

Two parties negotiated a settlement of hundreds of dollars for a claim but refused to compromise on the $22 filing fee. I suggested that the judge might not take kindly to adjudicating a case hung up solely on the $22 fee. A moment of silence, a shrug of the shoulders, and an even split. Settled.

A plaintiff rejected a compromise offer and insisted on going before the judge. The judge ruled for defendant and sent plaintiff away with nothing. This scenario is quite common but evidently not common enough to sway litigants who are convinced the judge will see things their way. I try to dissuade them from gambling but don’t always succeed.

A plaintiff appeared before the judge, after failed mediation, stating that her claim was a matter of principle, which meant as much to her as the money. The judge famously said, “All right, you get the principle and defendant keeps the money.” A rare win-win verdict.

Some cases seem to sit astride family and small claims courts. A separated couple arguing in family court over a parenting schedule revealed that the soon-to-be ex-husband had purchased a ring for his soon-to-be new wife using the credit card he still shared with the first wife. The first wife objected to subsidizing her rival’s jewelry. They settled out of court.

Unlike family court, tears seldom flow in small claims court, but there are exceptions. A teenager (legally minor) came to court with his mother, who represented him in claiming that the defendant dog breeder had sold him a puppy with kidney disease. Despite heroic efforts and large veterinarian bills, the puppy died — but not before establishing a bond of deep affection with son and mother. (Can you imagine otherwise?) Mother broke into tears as she spoke of their bereavement, while son wept silently next to her. Before long defendant was crying too. Mine were the only dry eyes in the room. Telling myself that I must remain strong in the face of so much grief, I conducted the session to an acceptable resolution: the defendant refunded the cost of the puppy. My wife later explained to me: “A puppy? Aw! That really belonged in family court, don’t you think?”

So there you have it: No tears in small claims court.