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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