District Court Day of Trial Mediation
By Dave Simison

If you ever harbor judicial ambitions, you will be swiftly cured by spending just a little time as a District Court mediator. I learned this by serving as a District Court day of trial mediator from the program’s inception as a pilot project in Annapolis, some 5 or 6 years ago to the present.
District Court day-of-trial mediations involve small claims cases (under $5,000), and as is the case with many lawsuits, they are more about "the principle of the thing," though money almost always is the balm.
District Court mediators are unpaid volunteers. The big draw that keeps me coming back is the diversity of the disputes, boat repairs, car repairs, landlords and tenants, wages and more), as well as the diversity of the disputants. Day-of-trial conflicts allow me to keep my skills sharp.

One memorable case involved a prominent therapist being sued for monies owed to his dentist. The dentist came to court with his office manager. When the case was called, the therapist at first sought a continuance to file a counterclaim and when that fell on not entirely deaf ears, he sought dismissal on technical grounds. The therapist had refused to pay his dentist because he believed his tooth may have cracked using the electric toothbrush the dentist had sold him.

This case had principles written all over it. After initial fact-finding, in private caucus, the therapist authorized me to take an offer to the dentist. In the hallway, the dentist rejected the offer but made a counter demand. Back in the session room, the therapist thought long and agreed to the demand, but asked that payment be made over 2 months (a crown was involved here). The dentist rejected that, and when the therapist agreed to a lump sum, the dentist decided he wanted more money. In the end, by my count, the dentist upped the ante two more times, and each time the therapist agreed to the latest demand. It was “rope-a-dope” like I had never seen, until the therapist was finally reduced to offering to pay the dentist on the spot the entire amount of the claim and the court costs. Having the therapist in this awkward position, the dentist rejected the offer!

The dentist wanted public humiliation of the therapist. You will have to agree that the mediator did nothing if not an outstanding job. It was, in the end, a matter of principle.

Looking back we might think there may have been some power in the therapist’s apology, but even that did not work. By the end, the dentist had lost an entire afternoon of appointments and had to pay his office manager for the down time. The therapist’s feeble apology could not carry any weight.
As mediators we often advance mediation as the preferred dispute resolution alternative. While we might argue between facilitative or transformative models and are tempted to reject evaluative models out of hand, if there is unanimity in the field, it is our conviction that most any model of dispute resolution is preferred to the judicial model.

The judicial model offers a formalistic structure with artificial constraints. The judges wear robes and are addressed as “his/her honor”. Participants must stand to address the judge. They are only allowed to speak at certain times, and often what they say must be in specific response to something they have been asked. Narratives or stories are not merely unwelcome; they are objectionable. The entire process is intended to remove all power from the individuals over the outcome. All power over the outcome resides with the judge.