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18 Law & Soc'y Rev. 11 (1984)
Mediation in Small Claims Court: Achieving Compliance through Consent

handle is hein.journals/lwsocrw18 and id is 13 raw text is: MEDIATION IN SMALL CLAIMS COURT: ACHIEVING COMPLIANCE THROUGH CONSENT CRAIG A. McEWEN* RICHARD J. MAIMAN In Maine defendants in small claims court are nearly twice as likely to comply fully with mediated outcomes as with judgments imposed by the court after adjudication. Some of the explanation can be attributed to specific features that are more common to mediated and negotiated settlements than to adjudicated outcomes. In addition, consensual processes lead to social psychological pressures for compliance that are not associated with authoritative judgments. Our findings point to the value of consent-the most central difference between mediation and adjudication-as an adjunct to command in promoting compliance with rules and orders. I. INTRODUCTION This article began as an effort to make sense of a striking finding from our research in Maine small claims courts (McEwen and Maiman, 1981). In a detailed comparison of small claims mediation and adjudication, we discovered a significant association between forum type and the likelihood that defendants would pay what they owed. The likelihood that mediation defendants would live up to the terms of their agreements was almost twice the likelihood that adjudication defendants would fully meet the obligations imposed upon them by the court. How can one account for this difference in compliance rates? It cannot, as we shall show, be explained away by differences in defendant or case characteristics. The literature on mediation, access to justice, alternatives to courts, and the like, despite its richness, provided us with no consistent guidance (see, e.g., Witty, 1980; Cappelletti and Garth, 1978; Wahrhaftig, 1982; McGillis and Mullen, 1977; Abel, 1982b). * Research for this article has been supported by a grant from the Law and Social Sciences Program of the National Science Foundation (SES- 7908872). The authors wish to thank Richard Lempert, Colin Loftin, Walther Gottwald, Gary Marx, and Neil Vidmar for their helpful comments on earlier drafts of this paper. LAW & SOCIETY REVIEW, Volume 18, Number 1 (1984)

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