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WV Alternatives to Small Claims Court

Were you involved in a fender-bender and the other driver won't pay to have your car fixed? Do you have a tenant that stopped paying rent for an apartment you leased to him? Is your former landlord refusing to let you get some things out of the house you rented? These are the types of disputes that can be handled by the West Virginia magistrate courts, or "small claims" courts. These courts are designed to be a fast, informal and inexpensive way for people like you to get the their property back or to get the money they're owed.

Not everyone with these types of legal problems want to file a lawsuit, though. Not even in a magistrate court. If you're like this and you want your money or property but don't want to go to court, you should know about some alternatives, such as:

  • Personal negotiation
  • Mediation
  • Arbitration

Any one of these tactics may help you get your money or property without having to step foot into a courtroom.

Personal Negotiation

This should be your first step, even if you're prepared to file a small claims lawsuit. All this takes is one or two simple phone calls or letters to the other person (he'd be called the "defendant" if you filed a lawsuit against him) asking that he pay you or return your property. Be polite and cordial. Maybe you can work out an agreement that benefits everyone.

If these first attempts don't get you anywhere, then consider writing a demand letter. It's exactly what it sounds like: A letter demanding that the other person pay you within a specific period of time, usually 30 days. To be effective, the letter should:

  • Briefly explain why you think the other person owes you money or has property that rightfully belongs to you
  • State exactly how much money you're demanding, or describe the specific property you want
  • Clearly state that you intend to take legal action, including filing a lawsuit in small claims court, if you're not paid or don't get the property within the 15 or 30 days that you give him

Try to send the letter by certified mail, return receipt requested. This costs a little more than regular first-class mail, but it requires the other person to sign for the letter when it's delivered to him. After it's delivered, you'll get the return receipt. Make sure you keep it, together with a copy of your letter, so that, if necessary, you can prove later that the letter was in fact delivered.

Mediation

Mediation is an informal meeting between you, the other person, and a neutral third party, called a "mediator." Most of the time you'll meet together, but sometimes you and the other person will meet separately with the mediator. The mediator's job is to help you both reach an agreement. She can suggest different options to help you reach that agreement, and she may even suggest a particular way of settling your claim, but she can't force or order either of you to do anything.

In most instances, mediation will be offered at no or little cost to you or the other person. Depending on everyone's willingness to negotiate and compromise, it can lead to a very quick settlement of your claim that makes everyone happy.

The courts like mediation, mainly because it saves time and helps clear the courts' busy schedules. In fact, in some West Virginia magistrate courts, after you file a lawsuit and you and the defendant show up for trial, the magistrate (the person who'll decide the case) likely will ask you'd both be willing to mediate. In some courts, your case may be "referred" or ordered to mediation. The case will go to trial only if either person refuses to mediate (unless mediation's been ordered), or if you and the defendant can't reach a settlement through mediation.

Some Rules to Know

There are some things to keep in mind about mediation, such as :

  • It's not binding, meaning that, even if you and the other person reach an agreement, the mediator can't enforce it. So, if the other person later breaks or "breaches" the agreement, you may need to start the whole process over again (personal negotiation, writing a demand letter, filing a lawsuit, etc.)
  • The mediator can't provide legal or personal advice. She can only suggest possible ways to settle the matter and help you both make sure that you reach an agreement that's good for you both
  • It's you and the other person who make the terms of the agreement, not the mediator. The mediator will only write down or document what you've agreed to
  • The mediator doesn't make a "decision" in the case like a magistrate would in the small claims court. That is, she doesn't decide who "won." Rather, she merely helps you reach an agreement
  • At any time, either party can withdraw from mediation
  • If you don't reach an agreement through mediation you can still file a lawsuit in small claims court. In other words, you don't waive your right to file suit simply because you agree to mediation. This is true for the other person, too, if he has a "counterclaim" against you, that is, he claims that you owe him money
  • Attorneys are usually not present during mediation. You can, however, hire an attorney to advise you about your claim, if you'd like

If you're interested in trying mediation, check your local telephone book for mediation services, or check with the clerk of the magistrate court in your area for a more information.

Arbitration

Arbitration is very similar to mediation. Here, a neutral third party, called an arbitrator, listens to both sides of the story, just like a mediator does, in the hopes of helping you reach an agreement. However, there are some important differences between arbitration and mediation:

  • If you and the defendant can't reach an agreement, the arbitrator will make a decision in the case, that is, decide if you're going to get paid and how much
  • The arbitrator's decision is binding, unless you and the defendant agree beforehand that it isn't binding. This means that it can be enforced by the arbitrator and, if necessary, the courts, if you or the defendant don't follow the decision
  • After going through arbitration, you can't file a lawsuit in a Massachusetts small claims court
  • Arbitration can be expensive. An arbitrator may charge over $125 for a four-hour block of time to listen to and decide your case

As with mediation, you and the other person have to agree to arbitration. However, you both also have to agree on the arbitrator. The clerk of the magistrate court in your area may have a list of arbitrators that you may contact. Or, you can contact the American Arbitration Association for a list of arbitrators in your area.

Questions for Your Attorney

  • I can't get the person who owes me money to answer my phone calls or letters. Is there any benefit to offering to mediate?
  • My former tenant agreed to mediate my claim for back rent but now he won't meet with or talk to the mediator. What should I do now?
  • How much will you charge me to file a lawsuit and represent me in small claims court? Will a lawsuit and the court fees cost me less than an arbitrator?

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