Mediating Disputes
Voluntary process can help neighbors work out problems
San Francisco Chronicle, January 29, 1997
By Barri Kaplan Bonapart, Esq.
You've just moved into what you thought was your dream house, only to discover you live next door to the neighbor from hell.
You know the one: He welcomes you to the neighborhood by insisting you chop down your beautiful trees that are blocking his view. At the same time, he won't trim his pine tree, which is littering your property with thousands of needles.
He refuses to share the cost of repairing an old boundary line fence but builds a new one while you are away on vacation --one that you are positive is two feet over the property line.
And to top it all, his rottweiler roams freely despite the leash law, attacking anything that moves and leaving "mementos" on your front porch.
Neighbor disputes are an urban plague. Typically, they fester until one day a seemingly innocuous act by one neighbor turns into an argument of mammoth proportions.
Many of us choose to live with the aggravation. Others, in anger and frustration, turn to the legal system for solutions --only to find that courts are ill-equipped to resolve such disputes.
What can you do if you are having problems with your neighbor? Short of moving, one possible solution is mediation. Often, even the most intractable neighbors will agree to this process --especially if litigation is the alternative.
What Is Mediation?
Mediation is a process in which the parties select a neutral person (the mediator) to assist them in resolving disputes by helping identify issues, areas of agreement and creative solutions. Unlike other forms of dispute resolution, control of the proceedings and the outcome remains completely in the parties' hands.
Mediation should not be confused with arbitration, where a chosen person makes a decision regarding the outcome of a dispute after hearing arguments and evidence.
Nor should mediation be compared to a settlement conference, where a judge uses "shuttle diplomacy" to achieve a compromise that may not satisfy either party.
Typically, mediators charge from $150 to $300 per hour. Depending on the complexity of the dispute, mediation can last from a few hours to several days. Unless the parties agree otherwise, these fees are generally split equally among the parties.
While mediators' styles may differ, mediation has key elements that set it apart from other approaches to dispute resolution.
- Mediation is a voluntary process.
Parties to the dispute participate in mediation by mutual consent. They are free to leave at any time if they do not like the way it is proceeding.
However, some California courts have recently instituted "mandatory mediation," a controversial development in the legal community because a crucial premise behind mediation is that it works only when the parties want to resolve their differences.
Even if you have been ordered into mediation, you may not be forced into a resolution with which you disagree. In other words, even in mandatory mediation, there are no mandatory resolutions.
- Participants have the power.
The solution to a mediated dispute comes from the parties, in stark contrast to litigation, where the outcome is imposed upon parties by a judge, jury, or arbitrator.
In mediation, participants also have the power to shape the process by selecting the mediator, and determining the length of the sessions, who will participate and whether attorneys will represent the parties.
- Parties can craft creative solutions.
Legal remedies ordered by a court are usually limited to monetary awards or blocking/ordering actions based on interpretation of the law. In mediation, parties can design agreements that address their feelings, needs, and interests, regardless of legal rights or entitlements.
The quality, form and nature of the solution derived through mediation are limited only by the imagination of participants.
For example, if your neighbor's tree is blocking your view, you may not have the legal right to demand the tree be cut down. Your neighbors might be interested in mediation, however, if they believe they may benefit from an agreement.
You might propose, for example, that you perform some act that your neighbor desires (such as paying for the repairs to your commonly owned fence) in exchange for your neighbor agreeing to trim the tree. You might further agree that the tree will be trimmed in such a way as to open up your view while maintaining your neighbor's need for privacy.
- Mediation is collaborative instead of adversarial.
Rather than focusing on accusations and blame, parties to a mediation are encouraged to work toward a shared goal --crafting a mutually satisfactory resolution.
One important benefit of working with --rather than against-- each other is that solutions are usually reached far more quickly and less expensively than through adversarial proceedings.
Why Mediation Works
When people are in conflict, they are often unable to hear each other's needs and concerns.
Mediation can provide a safe place where people can speak to each other, express their feelings and hear what the other is saying. This free flow of communication can allow parties to create solutions that meet each other's needs.
The truth is, mediation is a lot like couples' therapy. Many techniques used by experienced mediators are borrowed from therapists. Time-honored skills such as empathic listening allow mediators to steer participants toward a resolution.
Mediation is well suited to neighbor disputes for a number of reasons:
First, unless someone moves, neighbors have to live with each other for a long time. Unlike a divorce --where spouses split up-- problem neighbors are with you morning, noon and night.
Litigation can make matters far worse; since it's very hard to maintain, much less repair, a relationship after you sue.
Next, since most neighbor disputes do not involve claims for large monetary damages, a lawsuit can be prohibitively expensive with no guarantee that the dispute will be resolved.
Finally, most neighbor disputes involve needs or interests for which the law does not provide adequate redress. For example, most courts could not do much about a neighbor's tree shedding leaves on your lawn or his kitchen light shining in your bedroom window.
Because mediation is a cooperative process in which people work together to solve their problems, it can actually help repair a bad relationship.
Underlying many neighbor disputes are feelings unrelated to the dispute. For example, when one Oakland hills homeowner wanted her neighbor to cut her trees to a level that would restore her panoramic view, the tree owner, an elderly woman, felt that her neighbor was trying to violate her rights by telling her what to do with her property. The dispute lasted 12 years.
Mediation offered the tree owner a forum to express her need to be respected and autonomous. The upslope neighbor heard the elderly woman's concerns and acknowledged them. With the help of arborists and attorneys, they fashioned an agreement that addressed each of their needs on a tree-by-tree basis, removing some, and trimming others to precise specifications.
A trial does not provide the opportunity to discuss feelings underlying a dispute and may actually create more hurt feelings. Even if you win your lawsuit, bad feelings can intensify so that your castle becomes a fortress.
Selecting The Right Mediator
Many people promote themselves as mediators. Some are qualified; others are not.
When selecting a mediator, look for someone who is trained in mediation techniques. For recommendations, ask arborists (for tree disputes), lawyers, local bar associations and local government agencies such as public works and park and recreation departments.
Many former judges have become private mediators. But an excellent judge may not be the best mediator. With years of experience settling cases, judges are more familiar with the settlement conference style, in which parties compromise instead of working collaboratively toward a win-win resolution. This approach may not be appropriate for most neighbor disputes.
Some areas have community organizations that provide free or low-cost mediation services. Although you can save money by using one of these boards, there are drawbacks: Your mediator is selected for you and may not have qualifications or experience in your particular problem.
To find a community mediation organization in your area, call your local bar association or public works or park and recreation department.
It's a good idea to ask prospective mediators what style of mediation they use, what training they have, how they view their role and whether they have expertise in your type of dispute. Ask for references, and check them out.
Most mediations take place in conference rooms supplied by the mediator. Some disputes, however, lend themselves to on-site mediations. For example, in the dispute concerning the Oakland homeowner's view blocked by her neighbor's trees, it was invaluable having the mediator, the parties, the lawyers and tree experts meet at the property. There they could work collaboratively to craft a solution that took into account each tree and its function.
Coming to the Table
If you and your neighbor are still on speaking terms, suggest mediation and explain its benefits.
If your relationship has deteriorated to the point that you cannot approach a neighbor personally, send a letter proposing mediation as a way of resolving the dispute. Enclose articles or literature from a mediator that explains the process.
Consider enlisting a mediator to contact the other side. Many mediators are happy to try to facilitate initial discussions. In some instances, you may want to have an attorney contact the neighbor to propose mediation. Often, people will not take matters seriously until they are confronted with legal letterhead sent via certified mail.
As a last resort, you may want to file a lawsuit. Often, parties (such as the neighbor from hell) will come to the mediation table only when confronted with the prospect and expense of protracted litigation.
Remember, however, that litigation can be costly, risky, disruptive and draining. Pursue it only if all other efforts at resolution fail. (Some cities, such as San Francisco and Oakland, actually require parties to attempt informal reconciliation, mediation and/or arbitration of disputes regarding views and trees before they can bring a legal action.)
Even if you sue or are sued, it is never too late to pursue mediation. Just make sure you are represented by an attorney experienced in and comfortable with the mediation process.
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