Q: I received a summons for mediation, what does that mean?
If you have received a summons for mediation then you are a party to a civil case, either the plaintiff, who filed the case or the defendant who was sued. A summons to attend mediation is an opportunity to resolve your case without going to trial. Here is a little background.
In the state of New Mexico, we have nine magistrate courts that offer mediation as a means to resolve a civil lawsuit. In Valencia County, we are fortunate to have this option in both the Belen and Los Lunas Magistrate courts.
Mediation is a type of dispute resolution where parties sit down with a mediator. Each side explains what outcome they hope for and the mediator attempts to find middle ground. In my court, and prior to meeting with the mediator, I orient the parties as to what mediation is and why parties should attempt to reach an agreement. Here are some of those reasons.
First, we live in a small community and there is a good chance we will see one another in town, at work, church or shopping; better to leave court, if not as friends, then perhaps not with anger toward the other party.
Second, trials are dispassionate. Oftentimes the “principle” of the matter does not make its way into the facts of the case. Mediation allows for a full vetting of the facts and the feelings of both parties.
Third, if you lose a civil case, you will have a judgment against you. Have you ever applied for a loan and seen that question? If you have an outstanding judgment, it can affect your ability to receive a loan. Further, the winning party can seek property, wages or place liens against your property. None of this is good.
Fourth, if you win a civil case, while you do have the right to collect, it is your responsibility to seek collection and this process can be difficult to navigate.
Two common questions are: What if we do not reach an agreement and what if someone fails to meet their end of a mediated agreement? Both are good questions, with simple answers.
If you do not reach an agreement, your matter will be set for trial. If one of the parties does not meet their end of the agreement, then the court can issue a judgment based on the mediated agreement. Some other frequently asked questions can be found at adr.nmcourts.gov/information.aspx.
When I attended the U.S. Army War College, I took a class on negotiations using the Harvard Business School model. We learned the concept of “expanding the pie.” That is, two parties often look at a problem through such different lenses that they are unable to see a solution. However, if both parties open their perspectives wider they might see a solution.
For example, in court, I have frequently heard one party say, “We did not need to come to court if they had just said they were sorry.” In other words, the money did not matter, but the hurt feelings did.
Does mediation work? Yes. The success rate for mediation in our county was 61 percent in fiscal year 2017, according to the most recent available data. Of those, 94 percent resolved without further involvement from the courts.
On the other hand, for cases that go to trial and result in a judgment, the statistics indicate a probability of collection of only 42 percent.
How should I prepare for mediation? Prepare yourself as if you were going to trial by bringing your evidence, what you are seeking as an outcome, and most importantly come with an open mind.