Free Legal Information: Conflicts & Disputes
See the information below regarding small claims court and methods for resolving conflicts and disputes without involving the courts. Click the + next to a topic to read more.
What Are Your Options
We are all familiar with the most traditional dispute-resolution process of our civil justice system: litigation and trial with a judge or jury deciding who is right or wrong - where someone wins and someone loses. However, there are many other options available. Negotiation, mediation and arbitration - often called ADR or alternative dispute resolution- are the most well-known.
Whether you are involved in a family or neighborhood dispute or a lawsuit involving thousands of dollars, these processes should be considered. They are often the more appropriate methods of dispute resolution and can result in a fair, just, reasonable answer for both you and the other party. Settlement and compromise have long been favored in the legal system. In fact, most cases that are filed in a court do settle. Only five percent of all cases filed go to trial. ADR procedures are excellent options for you in dealing with controversy, allowing you to reach resolution earlier and with less expense than traditional litigation. In fact, many courts require parties to consider some form of ADR before going to trial. The following processes describe ways to resolve disputes.
Definition: Negotiation is the most basic means of settling differences. It is back-and-forth communication between the parties of the conflict with the goal of trying to find a solution.
The Process: You may negotiate directly with the other person. You may hire an attorney to negotiate directly with the other side on your behalf. There are no specific procedures to follow - you can determine your own - but it works best if all parties agree to remain calm and not talk at the same time. Depending on your situation, you can negotiate in the board room of a big company, in an office or even in your own living room.
Negotiation allows you to participate directly in decisions that affect you. In the most successful negotiations, the needs of both parties are considered. A negotiated agreement can become a contract and be enforceable.
When and How Negotiation Is Used: Most people negotiate every day. In some circumstances you may want the help of a lawyer to help you negotiate a fair deal. Negotiation is the first method of choice for problem-solving and trying to reach a mutually acceptable agreement. If no agreement is reached, you may pursue any of the other options suggested here. This process can be appropriately used at any stage of the conflict - before a lawsuit is filed, while a lawsuit is in progress, at the conclusion of a trial, even before or after an appeal is filed.
Characteristics of Negotiation:
- Private and confidential
- Quick and inexpensive
- Informal and unstructured
- Parties control the process, make their own decisions and reach their own agreements (no third party decision maker)
- Negotiated agreements can be enforceable
- Can result in a win-win solution
Definition: Mediation is a voluntary process in which an impartial person (the mediator) helps with communication and promotes reconciliation between the parties which will allow them to reach a mutually acceptable agreement. Mediation often is the next step if negotiation proves unsuccessful.
The Process: The mediator manages the process and helps facilitate negotiation between the parties. A mediator does not make a decision nor force an agreement. The parties directly participate and are responsible for negotiating their own settlement or agreement.
At the beginning of the mediation session, the mediator will describe the process and the ground rules. The parties or their attorneys have an opportunity to explain their view of the dispute. Mediation helps each side better understand the other’s point of view. Sometimes the mediator will meet separately with each side. Separate “caucusing” can help address emotional and factual issues as well as allow time for receiving legal advice from your attorney. Mediations are generally held in the office of the mediator or other agreed location.
Agreements can be creative. You could reach a solution that might not be available from a court of law. For example, if you owe someone money but don’t have the cash, rather than be sued and get a judgment against you, settlement options could include trading something you have for something the other wants. If an agreement is reached, it will generally be reduced to writing. Most people uphold a mediated agreement because they were a part of making it. It can become a contract and be enforceable. If there is no agreement, you have not lost any of your rights and you can pursue other options such as arbitration or going to trial.
When and How Mediation Is Used: When you and the other person are unable to negotiate a resolution to your dispute by yourselves, you may seek the assistance of a mediator who will help you and the other party explore ways of resolving your differences. You may choose to go to mediation with or without a lawyer depending upon the type of problem you have. You may always consult with an attorney prior to finalizing an agreement to be sure that you have made fully informed decisions and that all your rights are protected. Sometimes mediators will suggest that you do this. Mediation can be used in most conflicts ranging from disputes between consumers and merchants, landlords and tenants, employers and employees, family members in such areas as divorce, child custody and visitation rights, eldercare and probate as well as simple or complex business disputes or personal injury matters. Mediation can also be used at any stage of the conflict such as facilitating settlements of a pending lawsuit.
Attorneys and other professionals provide private mediation for a fee. If you have an attorney, you can work together to select a mediator of your choice. You may want a mediator who is knowledgeable about the subject matter of your dispute. You may wish to use a for-fee mediator in the first instance or if Early Settlement mediation has not resulted in a resolution of your dispute. You may also find mediators or mediation services listed in the telephone directory or available on lists provided by some courts or private professional organizations. When selecting a mediator, you should always check their credentials and get references. Mediators qualified under the District Court Mediation Act or certified pursuant to the Dispute Resolution Act meet statutory standards of training and experience.
Who Provides This Service: Public mediation services are available through Early Settlement Regional Centers located statewide. A list of the regional centers can be found online at www.oscn.net/static/adr. This program provides the services of volunteer mediators, trained and certified to mediate in the Administrative Office of the Oklahoma Supreme Court. Mediators in this system are assigned to mediate your dispute by the various program administrators. They are available at minimal or no charge to help you resolve conflicts, often without the assistance of an attorney or the need to go to court. Call 405-556-9300 for the phone number and location of the center nearest you.
You may also find mediation in our state and federal court systems called court-sponsored mediation. Generally you and your attorney may select a private mediator or choose a public service. Fees may apply. Judges are frequently referring cases to settlement procedures such as mediation to help litigants resolve their disputes in less time and with less cost than litigation and trial.
Characteristics of Mediation:
- Promotes communication and cooperation
- Provides a basis for you to resolve disputes on your own
- Voluntary, informal and flexible
- Private and confidential, avoiding public disclosure of personal or business problems
- Can reduce hostility and preserve ongoing relationships
- Allows you to avoid the uncertainty, time, cost and stress of going to trial
- Allows you to make mutually acceptable agreements tailored to meet your needs
- Can result in a win-win solution
Definition: Arbitration is the submission of a disputed matter to an impartial person (the arbitrator) for decision.
The Process: Arbitration is typically an out-of-court method for resolving a dispute. The arbitrator controls the process, will listen to both sides and make a decision. Like a trial, only one side will prevail. Unlike a trial, appeal rights are limited.
In a more formal setting, the arbitrator will conduct a hearing where all of the parties present evidence through documents, exhibits and testimony. The parties may agree to, in some instances, establish their own procedure; or an administrating organization may provide procedures. There can be either one arbitrator or a panel of three arbitrators. An arbitration hearing is usually held in offices or other meeting rooms.
The result can be binding if all parties have previously agreed to be bound by the decision. In that case, the right to appeal the arbitrator’s decision is very limited. An arbitrator’s award can be reduced to judgment in a court and thus be enforceable. In nonbinding arbitration, a decision may become final if all parties agree to accept it or it may serve to help you evaluate the case and be a starting point for settlement talks.
How and When Arbitration Is Used: A common use of arbitration is in the area of labor disputes - between fire fighters and the city in wage disputes, for example. You will usually be represented by an attorney in arbitration.
Many contracts have clauses which require that disputes arising out of that contract be arbitrated. You may have seen such a provision when you applied for a credit card or opened a retirement account or other account with a stock broker. You may want to explore using this process if you and the other side agree that the problem needs to have someone make a decision but you do not want the expense of going through the court process. If you agree to arbitrate or sign a contract with an arbitration clause, you should understand that the arbitrator may make the final decision and that you may be waiving your right to a trial in court.
Who Provides This Service: Many attorneys, other professionals or professional associations offer their services as arbitrators. Typically your attorney will select the arbitrator based upon the particular type of the dispute. In complex and highly technical cases, often an arbitrator who is knowledgeable in that field is chosen. Usually fees are charged.
Some courts offer court-sponsored, nonbinding arbitration and have specific procedural rules to follow.
Characteristics of Arbitration:
- Can be used voluntarily
- Private (unless the limited court appeal is made)
- Maybe less formal and structured than going to court, depending on applicable arbitration rules
- Usually quicker and less expensive than going to court, depending on applicable arbitration rules
- Each party will have the opportunity to present evidence and make arguments
- May have a right to choose an arbitrator with specialized expertise
- A decision will be made by the arbitrator which may resolve the dispute and be final
- Arbitrator’s award can be enforced in a court
- If nonbinding, you still have the right to a trial
Litigation (Going To Court)
Definition: Litigation is the use of the courts and civil justice system to resolve legal controversies. Litigation can be used to compel opposing party to participate in the solution.
The Process: Litigation is begun by filing a lawsuit in a court. Specific rules of procedure, discovery and presentation of evidence must be followed. The attorney for the other side will want to take your deposition to learn more about the facts as you see them and your position in the case. There can be a number of court appearances by you and/or your lawyer. If the parties cannot agree how to settle the case, either the judge or a jury will decide the dispute for you through a trial.
A trial is a formal judicial proceeding allowing full examination and determination of all the issues between the parties with each side presenting its case to either a jury or a judge. The decision is made by applying the facts of the case to the applicable law. That verdict or decision can conclude the litigation process and be enforceable; however, if appropriate, the loser can appeal the decision to a higher court. In some cases, the losing party may have to pay the costs of the lawsuit and may have to pay the other party’s attorney fees.
How and When Litigation Is Used: Our American civil justice system is one of the best in the world. Our Constitution gives us the right to a fair trial. If you want your day in court with a judge or jury of your peers deciding the outcome, then the pursuit of litigation and trial of the case is for you.
You may be in a municipal court, state district court or a federal court depending on the type of dispute you have and where your attorney files your case or where you get sued. State court trial judges are elected on a nonpartisan ballot, though vacancies are filled through an appointment process from highly qualified applicants. The district courts also appoint special judges, who handle certain kinds of cases, such as small claims and divorces. These judges are selected by the district judges from qualified applicants. Federal district judges are nominated by the president and confirmed by the U.S. Senate. Federal magistrates are selected by the federal district judges. In all courts, cases are randomly assigned to the various judges. You have no choice concerning which judge will hear your case. Juries are randomly selected from a jury wheel of licensed drivers within each state judicial district and, in the case of federal court juries, from a jury wheel of registered voters and drivers license holders.
If you cannot settle your differences through negotiation, mediation, arbitration or some other means, then you should pursue litigation through the courts with your lawyer.
Characteristics of Litigation:
- Involuntary - a defendant must participate (no choice)
- Formal and structured rules of evidence and procedure
- Each party has the opportunity to present its evidence and argument and cross-examine the other side - there are procedural safeguards
- Public - court proceedings and records are open
- The decision is based on the law
- The decision can be final and binding
- Right of appeal exists
- Losing party may pay costs
Other Dispute Resolution Procedures and Where You May Find Them:
- If you have a problem with a new car, you may find automobile arbitration through the Better Business Bureau to be a solution for you. The manufacturer of your car may also have a process of resolving disputes.
- If you are involved in agriculture and have a farmer-creditor controversy, the Agricultural Mediation Program may be helpful to you. For more information, visit www.ok.gov/mediation or call 800-248-5465.
- Victim-offender mediation which can result in restitution to the victim is available through the Oklahoma Department of Corrections.
- Other state and federal agencies sometimes offer settlement options in addition to their regular administrative procedures. For example, mediation of workers’ compensation claims is now available.
- If you do go to court, in addition to court-sponsored mediation or other ADR programs, you may find more procedures that encourage settlement or can resolve the dispute. Your attorney can tell you about the processes available in the court in which your case is pending.
- Appellate courts, such as our state Supreme Court and the federal Tenth Circuit Court of Appeals, have settlement conference opportunities.
- Don’t forget Small Claims Court where a judge can decide your dispute - usually without a lawyer - if your claim is valued under $7,500. Early Settlement mediation is often available here to offer settlement assistance first so you may not need to go before the judge.
- Managing meetings and reaching consensus within any kind of organization or group can often be achieved through the assistance of a trained facilitator. Facilitators are available through various nonprofit support centers and service leagues or other community organizations.
- School Peer Mediation - Peaceful Resolutions for Oklahoma Schools (PROS), a project of the Oklahoma Bar Association/Law-related Education Department and Early Settlement, is training students to mediate their own disputes.
- Communication and conflict resolution skills classes may be available in your community by contacting the Law-related Education Department at the Oklahoma Bar Association thanks to a partnership with Leadership Oklahoma.
- The OBA Alternative Dispute Resolution Section may be a resource to identify additional options.
Selecting the Appropriate Method
The method you use to resolve your dispute will depend upon your personal needs and the nature of your particular dispute. You may want to consult with an attorney to help diagnose which process best serves your particular situation.
- Private and confidential or in a public court setting
- Informal setting and a more flexible process or one that is more formal and has specific rules to follow
- Personal control or decision made by a judge or arbitrator
- Maintaining relationships
- Dispute decided on questions of law, resolved with business principles or a solution found through other fair, yet practical, means
- Binding and easily enforceable
There will always be times when a courtroom trial is the best option. Often, however, you are better served by one of the other alternative dispute resolution processes described in this brochure. With a better understanding of the considerations that can help you choose the most appropriate method, your conflicts can be more successfully managed and your disputes more satisfactorily resolved.
(Revised August 2015)
All Rights Reserved
Copyright ©2015 Oklahoma Bar Association
Q: What is “small claims”?
A: An action for recovery of money based on breach of contract, for injuries or to recover personal property may be brought in Small Claims Court if the plaintiff is willing to accept a recovery which does not exceed $10,000. The court clerk in your county can help you with small claims matters. Small Claims Court is not available for actions claiming libel or slander.
Q: Why Small Claims Court?
A: The small claims procedure was introduced to allow citizens to bring claims before a judge quickly. The Legislature has provided that there be no pleadings in small claims except those needed to state the claim or counterclaim. Court clerks in almost all counties have the required forms available. The terms are also available online at www.oscn.net.
Q: Is this quicker than regular or bigger cases?
A: Yes. It can take more than a year for a regular civil case to come to trial. Small claims cases are required by law to be heard not more than 60 days after the claim is filed. However, a defendant must be properly served with the lawsuit in both small claims and regular civil lawsuits. If a plaintiff files a small claims lawsuit and is unable to locate the defendant, it may take two to three months before the judgment is rendered by the court.
Q: Who may use small claims?
A: Anyone who has a claim against another in Oklahoma may use the small claims procedure. Anyone seeking to use small claims will be limited to a recovery of $10,000. The person must pay the filing fee prescribed by law. Any company which may otherwise bring a lawsuit in Oklahoma may use the small claims procedure. However, no action may be brought under small claims procedure by any collection agency or collection agent or any assignee of a claim, except under certain circumstances. A person who is in jail or prison cannot be a small claims plaintiff.
Q: May I use an attorney?
A: Of course. All parties are entitled to be represented by an attorney in every case in state court in Oklahoma. Either party may use an attorney even if the other side does not.
Q: Must I use an attorney?
A: No. An individual may be self-represented in small claims; a company may be represented by an officer or full-time employee. There is no requirement to be represented by an attorney. Judges are required to make the small claims procedure informal. Even in those counties where the small claims docket is a very busy docket, the judges strive to simplify procedure for unrepresented parties. However, the judge is required by law to apply evidence rules even in small claims cases. The judge cannot fulfill the role of an attorney for either side; therefore, parties must be familiar enough with their case and with restrictions on the use of evidence to be sure they are able to present their case properly.
Q: What is the most significant evidence problem?
A: The use of hearsay evidence is the most important evidence problem in small claims. Some parties do not realize, for example, that an estimate from a reputable automobile repair shop or a written statement from someone who saw an accident is not admissible in court. The reason for this is the estimate or the statement of the out-of-court witness is “hearsay evidence.” Hearsay evidence is not admissible in court because the source of the evidence is not available to be cross-examined. Cross-examination is a precious right which every party has in every case in Oklahoma. However, an estimate or other document may be allowed into evidence if the person who prepared the document is present to testify.
If you are not represented by a lawyer, the best thing to do, whether you are a plaintiff or defendant, is bring everything to trial that pertains to the lawsuit. Also, be sure all persons who know about the facts are available to testify.
Q: How can I avoid evidence problems?
A: Be certain you have in court all of the documents and witnesses who know about your case. If a document was prepared by someone who is not a party to the case, that person must be present to testify about the document. The court clerk in your county can issue subpoenas for witnesses and for witnesses with documents.
Q: When do I go to court?
A: When you file your claim in the office of your county’s court clerk, the court clerk will assign a day and time for your trial.
Q: How do I let the defendant know I have sued them?
A: Unless service by the sheriff is requested, the court clerk will serve an order on the defendant by certified mail compelling the defendant to be in court on trial day. You must be sure you give the court clerk the defendant’s mailing address so that the defendant can be served. Service may also be made by private process server, however, extra costs may apply.
Q: What if the defendant does not appear?
A: If the defendant has been properly served and does not appear in court, you will normally be entitled to a default judgment if you can prove your claim is valid. The judge will ask you enough questions about the case to establish the validity of your claim and then enter judgment in the amount you are entitled to have, which may include costs of filing the action.
If the defendant has not been properly served, you will not be entitled to default judgment, but you will be entitled to continue to try to properly serve the defendant again. This is called using “alias” (or substitute) process. This is used anytime there is a problem serving the defendant the first time. The court clerk can help with alias process.
Q: How do I collect my judgment?
A: All of the “post-judgment remedies” available to any party are available to the successful small claims party. If the defendant simply does not pay, you may execute on the defendant’s property, you may have a garnishment issued against the defendant’s assets or wages and you may compel the defendant to come to court for a Hearing on Assets to determine what assets are available. In addition, where both parties are present and a case is tried or settled and the judge enters judgment, the judge may also enter an order to pay. This is like an asset hearing held right at the time of trial.
Q: May I settle a small claim?
A: Yes, at any time before or after your trial. Due to the large volume of civil claims, courts always encourage claims to be settled. If your claim is settled before trial (that is, if all the issues have been resolved between the parties and all that remains is for the judge to approve the settlement and approve the agreed order for payment) then you should inform the judge of that when you are asked. During the hearing, most judges will ask whether the case has been or can be settled.
Q: What is a counterclaim?
A: When a person (the plaintiff) files a small claims case, the defendant has a right to assert claims against the plaintiff in the form of a counterclaim. If the counterclaim is filed properly and at least 72 hours prior to the time set for the defendant’s appearance, then the judge will try the counterclaim along with the original claim and give judgment in both. Counterclaims in Small Claims Court are also limited to a certain dollar amount.
Q: Must I choose small claims?
A: No. If you have a claim for $10,000 or less and want to use the regular civil docket, you are perfectly entitled to do so, however, the costs are higher and it will take more time before judgment is rendered. If you are sued in small claims, you may remove the case to the civil docket in limited circumstances. You must file an application for removal with the court clerk and pay the required fee, and the case must be removed to the civil docket. The case will then proceed as a civil docket case.
Q: Is there a jury in Small Claims Court?
A: Not normally. If either party wants a jury trial, and if the party’s claim exceeds $1,500, the party must notify the court clerk in writing at least two working days prior to the time set for the defendant’s appearance and must pay the required fee.
Q: Is there a “record”?
A: Not normally. A record is a verbatim report of the trial taken down by the court reporter. The law provides that if either party desires a record they must notify the court clerk in writing of that desire at least two working days prior to the defendant’s appearance and pay the required fee. In case of appeal, a record will provide the best reference for what happened in the trial court, but there is a method for appealing on a written summary of the proceedings without a record.
Caution: The law the court must apply may be very complex even in small claims. You should make certain you are comfortable with what you must prove and how to do it before you represent yourself in any court hearing or trial. If you are unsure about proceeding with a lawsuit, contact an attorney.
(Revised November 2018)
All Rights Reserved
Copyright ©2018 Oklahoma Bar Association
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