Common complaints about others abound: the barking dog next door, the neighbor who always parks in front of someone else’s house for days on end, or the lady whose car was hit by a neighbor’s visiting grandchildren when their beach ball went astray. Perhaps a neighbor doesn’t want his children exposed to the skinny-dipping parties that go on next door. Or there might be a condo owner who complains of another owner’s discriminatory behavior. Where there are people, there are conflicts, but all these conflicts that can be eliminated by a simple mediation.
Any kind of dispute between individuals is appropriate for mediation – a divorce agreement, a landlord tenant conflict, or a worker/employer misunderstanding. But by far the most common disputes that end up in mediation are neighbor to neighbor or inter-family conflicts. The law recognizes that landowners, or those in rightful possession of land (tenants or invited guests), have the right to the unimpaired condition of the property and to reasonable comfort and convenience in its occupation. This is known as “quiet enjoyment” of the land.
The problem arises when one person’s “quiet enjoyment” infringes upon the “quiet enjoyment” of his neighbor. Mediation can solve these problems in a cheaper, more satisfying way than litigation. Whereas only one party wins in a lawsuit or arbitration, in mediation, ALL parties end up receiving something with which they can be satisfied.
For example, Joe and Bill live next door to each other. Joe’s pine tree, planted by his great grandfather, stands next to the fence bordering Bill’s property and sheds its needles regularly. Bill complains the tree’s needles fall in his swimming pool and clog the drain, necessitating many hours per week of both pool maintenance costs and Bill’s personal labor to keep the machinery running and the pool clean. Bill wants the tree cut down, so he doesn’t have extra expense and hours cleaning the pool when he could be doing something else, which is lack of quiet enjoyment. Joe refuses to cut the tree because it has a deep sentimental value that is his quiet enjoyment.
If Bill sues Joe in small claims court, one person will win and one will lose and have to pay the filing and process serving costs. Both parties will live under stress until the case is decided, and after the decision, the neighbors will likely never get along again. If the value of the tree and services is over $10,000, the suit goes to Superior Court and both parties will have filing fees of at least $395 and attorney’s fees they each will have to pay. Each party’s attorney’s fees for a Judge-decided bench trial can be $50,000 or more.
On the other hand, if both Bill and Joe agree to mediation, they will talk about the problem, identify exactly what each party needs in the situation, and they will arrive at a solution that both parties agree upon. One such solution, suggested during the mediation process by the parties themselves, might be that Joe gets to keep his tree and his quiet enjoyment, but Joe will pay Bill a monthly sum for the extra pool care cost required by his falling needles providing Bill with his quiet enjoyment. A mediation agreement will be signed and both parties are satisfied with their own solution. Perhaps they will even become good friends.
The good thing about a mediation is that the agreement is a private agreement. It need not necessarily follow the law, as long as all the involved parties are satisfied with the arrangement. The agreement can contain built in means of enforcing the terms, such as a requirement to attend anger management classes for the party who tends to yell or show violent displeasure.
One case I saw was a case of juvenile vandalism that cost the property owner thousands of dollars. The juvenile was looking at detention time, community service and aggravation from family and friends. The homeowner, however, was willing to not press criminal charges as long as the youth worked off the debt by doing gardening and washing the family cars every week for one year. Each time that youth fixed up the property owner’s garden or kept his car clean, he learned the valuable lesson that doing good brings its own rewards. Both parties were satisfied with the deal and the law was bypassed by a mediation agreement.
For cases of very small monetary value, there are free mediations available through your local County Dispute Resolution programs. Private mediators charge by the hour and the fee, starting at $250 per hour, is usually split by the parties to the mediation. A mediation can be accomplished in from one to ten hours or more, depending on the willingness of the parties. Sometimes a stalemate is reached and the parties have to return another day. I’ve heard of mediations in a divorce settlement that cost $500 and those in a civil litigation that cost $9000. Taken in perspective, those fees are cheap compared to $50,000 per side to have the court decide on one winner with everyone paying out of pocket filing and attorney’s fees and no one being truly satisfied.
If you or someone you know has a serious conflict with a friend, family member, or business associate and they want to sue to get it resolved, encourage the parties to seek a mediator for a less costly and less stressful true Win Win result.