Kinder, gentler way to settle disputes
Related stories:
Good listeners make good mediators
A way to ease the burden
GORDON DANIELS

Mediators Deborah Roth-Howe, left, and Robert Bernhard, say their own opinions about how a case should be resolved are irrelevant - mediation is about helping the parties come to a decision they feel is fair.

--------------------------------------------------------------------------------

--------------------------------------------------------------------------------



--------------------------------------------------------------------------------
By SUZANNE WILSON, Staff Writer
--------------------------------------------------------------------------------
Saturday, April 26, 2003 -- THE problems Deborah Roth-Howe of Amherst hears about every Wednesday morning in Small Claims Court aren't exactly headline-grabbers. No, she hears about the leaky roof that didn't get repaired properly, the dentist bill that went unpaid, the sweater that got ruined at the dry cleaners.
And yet, Roth-Howe, a trained mediator who doesn't get paid a dime for her time and effort, would hate to miss a single one of these sessions.

"I got into this because I really believe in the power of dialogue," she says.

She usually spends several hours a week trying to help people find solutions to the conflicts that have brought them to the Northampton courthouse. It's a commitment she fits into the already busy schedule she keeps as a social worker employed part time by the Hampshire Educational Collaborative, an agency that provides specialized services and programs to area schools.

As its name suggests, Small Claims Court is where disputes involving less than $2,000 are heard, a pittance in these days of million-dollar jury awards.

Roth-Howe, 49, is one of 20 people who volunteer their time to the Small Claims Mediation Project, a state-funded program administered by the Franklin Community Action Corporation in Greenfield. The project is an effort to ease the burden on courts in Hampshire and Franklin counties by reducing the number of cases heard by the clerk-magistrate.

She goes into every mediation believing that somewhere in the murky back and forth, somewhere in the snarled heap of accusations and counter-accusations, lies buried a measure of goodwill.

"Now," she says, "let's try to unravel it..."

Making the pitch

Plaintiffs, defendants and a smattering of lawyers begin filing into the courtroom at around 8:30 a.m. Roth-Howe and several other mediators look on as they wait for the proceedings to begin.

Gerald "Jay" Morin, the clerk-magistrate, reads off the list of cases on the docket for that morning - on this day, about 20. No-shows aren't unusual in Small Claims Court and if neither party is present, the case is dismissed.

As he calls the roll, Morin tells those assembled that mediators are there and he urges them to consider the option. It's completely voluntary, he says, and if it doesn't work, the parties can still come back and have their court hearing that same morning.

When he's finished, about eight people get up and go into an adjoining room to hear Larry Saunders give what he calls "my famous Wednesday spiel." Saunders, a psychologist and former therapist who is the volunteer coordinator of the Small Claims Mediation Project, gives the group a quick overview of how the process works.

If both parties agree to give it a try, they'll meet with one or two mediators in a separate room. Each person will have a chance to give his or her side of the story. The idea, Saunders tells them, "is to have a conversation, to talk about the issues that brought you here."

He explains that if an agreement is reached, it can be entered as a judgment of the court, or continued to another date to give the parties more time to gather information, make payments or satisfy some other requirement. If they decide they can resolve everything themselves, without any involvement from the court, the case can be dismissed. And if they get nowhere in mediation, they'll head back to court.

Two of those listening, Bartlett Doty, a 20-year-old college student from Northampton, and Gregg Yvon, 33, of Blandford, are involved in a dispute about a paintball marker, or gun, that Doty ordered last summer from Yvon.

Both decide they might as well give mediation a chance. The two hadn't spoken in months, Doty would later explain, and so he was curious to hear what Yvon had to say. Yvon, meanwhile, liked the idea of talking it out, instead of going through what he thought would be a more adversarial court process.

As it turns out, they are the only two who say yes. The rest, their faces set and hard, answer with a terse no and head back to court. On average, Saunders estimates that about two-thirds of those who consider mediation wind up deciding to try it.

Robert Bernhard of Northampton, a 40-year-old mediator who also has a law degree, says those who reject mediation may feel that things have deteriorated so badly that talking won't help. Or they may feel so strongly that they're right that the idea of compromise is anathema.

Mediation can overcome many obstacles, he says - but it can't force people to open up. "You have to be willing to at least talk."

Person to person

After the introduction wraps up, Roth-Howe and Bernhard lead Doty and Yvon downstairs to a small room on the ground floor.

On a busy day, the mediators work on their own; if the schedule's light, they'll often double up, as Roth-Howe and Bernhard do on this morning.

The plaintiff and defendant have no way of knowing what motivates the two volunteers sitting across from them at the table.

Roth-Howe's belief in the importance of resolving conflict peacefully flows from her upbringing as the child of German Jews who fled Nazi Germany in the 1930s; other members of her family perished in the Holocaust.

As an adult, she got involved in an organization called One by One that brings together descendants of Holocaust victims and of Nazi-era Germans to discuss the Holocaust's effect on their lives. Real change can occur, she says, any time two people sitting together engage in an effort to dispel fears, stereotypes and misunderstandings.

Robert Bernhard traces his mornings at the Northampton courthouse to a debilitating spinal-cord injury he suffered in 1996, when he fell on ice while getting out of a car.

At the time, he was working as an attorney in New Hampshire. His long recovery and the effort it took to rebuild his life and to learn to live with adversity and pain led to many personal and professional changes. He moved to this area in part because he wanted access to a wide range of alternative medical practices.

Along the way, he also made a decision to explore alternative forms of conflict resolution and to add those skills to the legal assistance he can offer others. Dealing with the profound changes in his own life, he said, prompted him to stop focusing so narrowly on "layers of precedents and rulings" and to find ways to help people handle the emotional burdens they bring to court.

They settle in, and Roth-Howe gets the discussion underway. In a manner that's both professional and friendly, she introduces herself and her colleague, and suggests they all go by first names.

"Robert and I know nothing about your dispute," she tells them, "so we're starting at the beginning." Since it's the plaintiff who's brought the case, she asks Doty to go first.

Doty's side of the story

He explains that last June he went to Yvon, who was doing business in Hadley at the time, to order a custom-made paintball marker. He put down $667, half of the total cost, he says, and it was his understanding that Yvon would buy the parts, assemble the gun and have it ready in about four to six weeks.

But when he went to the store to check on it, Doty says, Yvon's employees seemed evasive. "I was really given the run-around a lot," he says - and then the store closed. He never did get the gun.

After he filed his small claims case, he says, he got a letter saying the gun was ready.

Roth-Howe, jotting down notes as Doty talks, asks him what he thinks would be fair. A refund or the marker at a reduced price, he replies.

When he's done, Roth-Howe recaps his points, asking for clarification on a few of them.

When it's Yvon's turn, he opens on a conciliatory note - something Roth-Howe says later is rare.

Yvon explains

"I agree with much of what he said," Yvon explains. He apologizes if his employees were misleading and for the added confusion caused by his store's closing. But he points out that he's sure he'd told Doty that the gun might take two weeks or two months: "I'm at the mercy of the manufacturers."

The marker, he says, was finished in August, but when he tried to contact Doty toward the end of that month, he discovered the apartment phone had been disconnected.

"I had no way to contact you," he tells him. So there he was, he says, stuck with a gun that would be hard to sell because it was custom-made. And he's not sure a reduced price will cover his own costs.

The resolution

Bernhard sums up Yvon's story, zeroing in on the misunderstanding that took place when the two lost contact.

For the next half hour or so - as the mediators occasionally interject questions and summarize key points - the two go back and forth about price, the missed phone call, the additional cost of getting a warranty for the gun, and other details. Doty leaves the room twice to check in with his father by phone.

With his father's OK, he offers to buy the gun for $900, including the down payment; Yvon wants $1,000. In the end, they meet in the middle at $950. The final step is to set up a payment plan so that both know when the money is due. "I don't need it today, but I need a date," Yvon says.

They agree that Doty will pay $283 by June 25 - and he can take possession of the marker today.

Before they leave, RothHowe, remembering the role a missed connection had played, makes sure Doty and Yvon have each other's phone numbers and addresses.

They spend some time filling out the paperwork needed to continue the case to July 2. If Doty has paid by then, he will notify the court and no more action will be taken; if not, he'll be expected back in court that day. If he doesn't show, the court will issue a judgment ordering him to pay - which will show up on his credit history. As a last resort, the court can also issue civil arrest proceedings.

The two men get up to leave, both saying they're pleased with the outcome.

"I want to compliment both of you," Roth-Howe tells them. "You made that work in a very nice way."

Apology accepted

Things don't always go quite that smoothly, the mediators say later. "Most of the time, one or both people are really upset, agitated or angry," says Roth-Howe.

As they talk about the case they've just heard, they point out aspects of the exchange they've seen before. Both people had arrived at court, Bernhard says, completely unsure of the other's position and intentions - "and both felt like they'd gotten stiffed."

Roth-Howe had been struck by the importance of that missed connection - Doty's realization that Yvon had indeed made an effort to call him. What she always looks for, she says, are those moments that can soften hardened positions.

"People come in so armored," she says. Then, "you sometimes see the tension drain right out of their bodies."

She has seen plenty of tension, anger and tears. There are times, she says, when those feelings are far more important than the money that changes hands. Sometimes the real resolution is the apology, not the signed check.

"It's so interesting," she says, "to see what people need."

Family matters

The toughest, saddest cases, she has found, are those involving family members. Once she mediated a case in which a bitter falling-out had culminated in parents suing their own daughter over an unpaid $2,000 phone bill.

Though they were finally able to agree on a payment plan, Roth-Howe felt compelled to speak up. It was a bill that had brought them to court, she told them, but the problems seemed deeper than that. She wanted them to know, she said, that there were ways to get help through counseling, support groups or other services. "The most you can do," she says, "is to plant the seed."

Their role, the mediators emphasize, isn't to find fault or to lead the parties to the outcome they - the mediators - think is best. "It doesn't matter what we think," says Roth-Howe. "The question is, do they think they came out with something that's fair?"

"We keep the ground rules, and make sure they respect them," says Bernhard. "We can show them the common ground. Other than that, we try to stay out of it as much as we can."

That doesn't always come naturally to someone who's spent years as a courtroom lawyer.

The process is key

"My lawyer brain is always working," Bernhard says. But the satisfaction he derives from seeing people resolve their own conflicts, he says, far outweighs the temptation to jump in and "fix" things.

In court, he says, "one person is going to be much more satisfied [with the outcome] than the other." Mediation, in his view, does more than satisfy both sides.

"People can walk out with life skills they may not have had before," he says. They may have learned to articulate their hurt and anger; they may have finally faced up to a situation like an unpaid bill that had made them feel embarrassed, afraid and ashamed. "That can be very empowering."

By late morning, the mediators' weekly stint at court is over.

"I think the work is more gratifying than I expected," says Roth-Howe. She had thought, she says, that Small Claims would be a "short stop," that she'd soon want to move on to divorce cases or other deeper entanglements. But that hasn't happened yet.

"These are not necessarily earth-shattering [cases]," she says, "but for me, it isn't really about the content. It's about the process that unfolds in that room."


Suzanne Wilson can be reached at swilson@gazettenet.com.