Mediation & Hearing Procedure
Local Mandatory Mediation
Mediation is strongly encouraged before a trial is allowed in Small Claims Court. The court will set the date for mediation at the time of filing. Both parties must attend the mediation or formally opt-out. If the plaintiff fails to appear, a dismissal may be entered. If the defendant fails to appear or formally opt-out, their answer, if one was filed, may be stricken and default judgment entered. Parties must bring their evidence to the mediation, however, no witnesses are allowed. The purpose of mediation is to settle the case if possible; if no settlement is made at mediation, the case will be set for trial. Attorneys and paralegals may not represent parties at mediation.
- If the plaintiff and defendant both appear on the assigned appearance date, the case will be assigned for mediation. If an agreement is reached, the case may be concluded. If a trial is necessary, the judge will inquire as to the nature of the claims, the number of witnesses and exhibits anticipated, and the amount of time expected to present testimony and evidence. The Judge may also suggest what evidence might be helpful to the court in reaching a just decision. The Judge will then assign a date and time for trial.
- If the defendant fails to appear, and if service has been properly and timely made, the plaintiff will be granted a judgment against the defendant up to the amount claimed, if the plaintiff's testimony supports the claim.
- If the plaintiff fails to appear, the case will be dismissed without prejudice, but if the defendant has filed a written counterclaim against the plaintiff and served a copy of it on the plaintiff, the defendant may be allowed judgment against plaintiff on the counterclaim. Oral counterclaims are allowed only if both parties appear at the first hearing, and then only if the counterclaim arises out of the same transaction or event upon which the plaintiff's claim is based.
- If neither party appears, the case will be dismissed without prejudice.
At this hearing, the plaintiff and defendant will testify and call witnesses to testify, and present exhibits for the court to consider. Although the small claims judge has the authority to seek out evidence on his own, this is seldom done, and the court usually relies on the evidence produced by the parties. As trials are not always held at District Court, come early and check in with the clerk so you can be directed to the location of the trial.
The same rules apply at this hearing that applied at the first appearance hearing if parties fail to appear for the hearing.
The term "appears" means personal appearance of the party involved, except for the first appearance where an employee or agent (not an attorney) may appear if the employee or agent knows facts sufficient about the claim or defense to discuss the case intelligently, and is authorized to bind the party represented. Personal appearance of a party is always more desirable, however, because the case may be able to be settled through mediation at the first appearance if both parties personally appear.
Occasionally it is necessary for a case to be continued (postponed). Requests for continuance must be made in writing, detail the reason for the request, be signed by the party requesting it, and be served (delivered) to the other party as well as filed with the clerk at least five days in advance of the scheduled hearing date (except in life threatening or similar emergency). You must ask for the continuance as soon as facts requiring the continuance become known to you. The request may not be granted, so check with the clerk for the court decision on the request.