"Small Claims Mediation" by Craig A. McEwen and Richard J. Maiman
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Abstract

In recent years considerable attention has been paid in the United States to the development of informal "alternatives to court" as part of a world-wide access to justice movement. Of these alternatives to courts, mediation contrasts most sharply with adjudication and, in theory, promises much by way of decreasing the alienation of citizens when it is made an adjunct to the formal judicial process. The contrast and promise stem largely from the participatory and consensual character of the mediation process. A third party to the dispute—the mediator—encourages the parties to find a mutually agreeable settlement by helping them to sharpen the issues, reduce misunderstandings, establish priorities, vent emotions, find points of agreement, and, ultimately, negotiate an agreement. Unlike a judge or arbitrator, the mediator lacks authority to impose an award, and thus mediation can fail if one or both parties refuse to settle. It is this sharp contrast between a process based on participation and consent and one founded on authority and imposition of judgment that makes mediation a particularly intriguing alternative to court. The consequent benefits of mediation have been asserted frequently and serve to justify scores of mediation programs across the United States and Western Europe. Apart from the hoped-for impact on caseload and delay, mediation presumably has a number of favorable effects on the parties to the dispute and on the legal system as a whole. This article is the first report of a social scientific research project that we have undertaken to gather data on mediation programs and to address the range of issues raised by Maine's adoption of mediation as an alternative to small claims court.

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