By Michael Dunk
One of the cornerstones of the Osgoode Mediation Clinical Program is the opportunity to conduct mediations at the Sheppard Avenue and Brampton Small Claims Courts. Being a student of the program during the past academic year, I attended and conducted mediations at both courthouses. Continuing with the Mediation Clinic over the summer, one of my many responsibilities was to continue offering mediation services to litigants at Brampton Small Claims Court on Friday mornings.
This type of hands-on, experiential learning opportunity to apply theory to practice in a real-world environment was precisely what drew me to Osgoode in the first place, and participating the Small Claims Court program has truly been one of the highlights of my legal education. While still in law school, the program has allowed me to interact with litigants and judges while assisting with access to justice and further developing my own communication, advocacy, and dispute-resolution skills.
Having the opportunity to engage with real litigants and diverse legal issues was incredibly rewarding. Helping parties reach an agreement that provided them with finality without having to go through a trial was a great feeling, and the parties were always thankful for the service we provided. Even in cases where no agreement was reached, parties can benefit from the process. In most cases, the communication between the parties has broken down, and all that they see is red—they have up what I like to call their “litigation blinders.” They do not want to communicate or cooperate with the other party in any way, and all that they can see in front of them is the trial. The condition of litigation blindness is usually worse for self-represented litigants, who are the majority of participants in small claims court. It is for this reason that simply getting the parties into the same room and having a discussion is a significant step toward resolution.
In one case that I mediated where no agreement was reached, both parties expressed that they learned new case-relevant information from the other party as a result of the mediation process. It was clear to me that the parties had minimally communicated with one another about the case and had not negotiated with one another prior to that day. As I left small claims court that day, I overheard the parties negotiating in the hallway. I doubt that the parties would have even spoken to each other, let alone negotiated, if they had not gone through mediation.
In a recent case that I mediated at Brampton in June, the seller and buyer of a property were in dispute over alleged damage to the property that was not disclosed in the property listing. The plaintiff was seeking damages in order to repair the deficiency. Prior to the mediation, the court clerk brought me into the judge’s chambers to speak with the judge. He gave me a quick run-down of the case and told me that the court docket was too backed up, the case would not get heard that day, and the next trial date that the parties would get will likely be in September.
Both parties were self-represented, and as is typical, they had not communicated with one another in the past several months and both were confident that the other party was in the wrong. Despite being adamant in their positions at first (again, typical), I assisted the parties in reaching a settlement. They both expressed their gratitude to me for helping them reach an agreement and left the room together after a handshake. I returned to the courtroom with the parties to have the judge sign off on the settlement agreement that I drafted, and he also expressed relief and gratitude that the case had settled. (It was also gratifying to hear from the judge in private that he had the same view as I did of the legal issues and that the settlement amount approximated what the plaintiff would likely have recovered at trial).
Through these experiences I hope it can be seen how positive of an opportunity the small claims court program is for students, and how great its potential is to alleviate strain on the court system and assist litigants in reaching a fairer, more expedient resolution of their own design. I strongly recommend that clinic students, whether during the school year or the summer, take the opportunity to attend small claims court as many times as possible. It will have a lasting impact on your professional development and the legal system.