by Ryan McKeen
Learning from the little things.
I’ve been doing a lot of reflecting on litigation and with good reason. Other than a real estate closing, forming a company, or doing an estate plan – it’s most of what I do.
A few weeks back, I was involved in a small dispute between a landlord and tenant. As is often, but not always the case, I was representing a landlord. This just happened to be a security deposit dispute. The plaintiff was pro se.
I tried my darnedest to negotiate a settlement in the case with the plaintiff.
Using my best reasoning skills, I spent a half hour trying to negotiate a fair proposal and avoid a hearing.
The plaintiff heard what I was saying in the hallway that day but it may as well have fallen on deaf ears.
Why?
In the plaintiff’s own words: “I paid my filing fee, I want the judge to hear this.” The plaintiff asserted her right to the fundamental right to be heard.
So we went into court and tried the case.
In practice, I see the need to be heard as one of the fundamental needs/wants/hopes of all parties. When a person feels wronged and he wants to tell someone about it. Ideally, he wants someone to validate his claim, but he’ll often settle for being heard.
From what I’ve observed, to most clients, it doesn’t matter who hears the case. It doesn’t matter the title of the person sitting at the head of the table. The person could be a judge, magistrate, JTR, housing specialist, family relations officer, an ATR or a private trained mediator.
Most of the time the only thing that matters is that the person listens and is neutral. That’s one of the reasons why I think mediations tend to resolve cases.
Back to my pro se plaintiff.
We got a ruling from the magistrate in the case and it turns out that my offer was slightly ($23) more generous than what the magistrate ordered in the plaintiff’s favor.
I haven’t spoken with the plaintiff since we left court that day but I’m willing to bet the plaintiff would tell me that the $23 that it cost her to have the hearing was money well spent.
What I don't understand in litigation is… just because someone can file a law suit, or even has a right to file a law suit….doesn't mean they have the right to win anything. Mediation assumes that they have a right to win a mediated settlement.
It seems the zeal of lawyers to mediate is more to validate each others work to the real victims….they are called clients. Justice wronged… is the product of mediation.
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