Feature
by Laura Farrow
Mediation is a way for people to resolve their disputes by going to a skilled, neutral person for help in negotiating a solution. When tenants sue their landlords, mediation offers the possibility of resolving the lawsuit without going all the way through a trial, thus saving both sides the time, expense, uncertainty and emotional agony of the litigation process. Mediation can offer even more. For example, if a tenant and a landlord have a conflict that makes dealing with each other difficult, or if tenants have conflicts with one another about noise, smells or the use of common space, mediation offers the possibility not only of resolving the issues but of doing so in a way that leaves people less angry with and more accepting of each other and, thus, better able to be good neighbors.
How Mediation Works
In mediation, the people involved in the dispute are
the ones who decide together how it will be resolved.
In this way, mediation is completely different from
going to court, where a judge or jury decides that one
person wins and the other loses. A mediator will ask
each person to talk about what he has experienced, how
he views the situation now, and what he cares about
and needs in order to feel that the conflict is resolved.
This conversation defines the scope of the negotiation.
The mediator works hard to understand each person’s point of view and to help and encourage each person to consider the situation from the point of view of the other person. When people are assisted in this way to understand what the situation is like for the other person and then to see the other person making a similar effort to understand what it is like for them, they often become more open to searching for and finding a resolution that will work for both of them. In this process of understanding each other and looking together for a mutually satisfactory resolution, people are reminded of a simple fact: they are both ordinary human beings, doing their best in a difficult situation. The benefit of this approach is that it becomes easier for them to work together and live together in the future.
Limitations in Mediating Lawsuits
Unfortunately, when people are already involved in a
lawsuit, their mediations typically do not match this
description. There is often little effort made to understand
each other, and too often the relationship between them
remains broken and laden with blame and bitterness.
The outcome results most often in the payment of money
and the agreement that they should part company for
good.
There are a number of reasons why this is so. When a person decides to bring a lawsuit, she has usually decided that too much harm has already been done and the situation can no longer be made right. On the other hand, when a person learns that she is being sued, she is generally both terrified and outraged and is quick to agree that there is no longer any room for understanding. Once the litigation begins, attorneys stake out positions, argue their clients’ rights and obligations and then evaluate how much money the case is worth. In this context, understanding each other is vastly more difficult, if not impossible. Rather than looking for a mutually satisfactory resolution, most attorneys advise their clients to accept a resolution that leaves each side equally unhappy.
Even with its limitations, a mediated resolution is preferable to a trial in the vast majority of cases. The parties save an enormous amount of money, time and energy; and they retain some control over their situation as well as some of the dignity that people often feel they lose in litigation. However, those landlords and tenants who are attracted to the idea of working conflicts out in a good and healthy way should remember that they are wise to try mediation before the situation deteriorates to a point that litigation is contemplated.
Landlords Mediating with Tenants
There are a number of situations in which landlords
are well advised to offer to mediate with their tenants.
Following are three examples:
- A tenant has agreed to do yard work or to perform other tasks as part of the tenancy, and the landlord is dissatisfied with the tenant’s performance. The landlord’s counsel advises him that the situation is probably not bad enough to constitute a breach of the lease. When the landlord tells the tenant to shape up, the tenant becomes angry and belligerent. Both people leave the conversation feeling dissatisfied and unhappy.
- A tenant is dissatisfied with her landlord’s maintenance of the property and is demanding improvements. The landlord believes that her demands are unwarranted and would be too costly to implement, but considers her a good tenant and does not want her to move. The landlord tells her this, hoping to be able to negotiate some less costly solution, but she quickly becomes irate and threatens to file a complaint about him.
- • A tenant organization is making significant demands, and discussions with the landlord only seem to escalate the conflict.
These situations have some common elements that together suggest mediation would be a good idea. First, the situation is one in which the parties would prefer to or must continue the tenancy, but something about the tenancy is not working for them. Second, for reasons that may or may not be clear to them, their efforts to discuss the situation only make it worse. They need help in order to work it out. Where there is both a need for the landlord and tenant to work something out, and a lack of success in negotiating on their own, the landlord should suggest mediation.
Tenants Mediating with Each
Other
Quite often tenants in the same building get embroiled
in conflicts with each other. One common problem is
noise: one tenant complains that the other is too loud,
and the other argues that his noise is normal. One feels
the other is inconsiderate, while the other feels the
first is controlling and unreasonable. Each becomes
defensive about his needs and his way of living. The
experience of noise as too loud is inherently subjective,
and as the first tenant becomes more upset with the
other, he pays more attention to sounds from the other’s
apartment and hears even more noise. The other meanwhile
feels determined to exercise his right to live in his
own apartment, in his own way and ends up making even
more noise. Similar conflicts can arise over smells
or over the use of common areas.
In situations like these, the landlord is caught in the middle and may end up dealing with a conflict that she feels powerless to solve. This is another good time to offer mediation. A skilled mediator can help these people relax, enable them to understand that they each have legitimate needs and interests, and provide creative ways for the needs and interests of each to be met. Through this process, the parties may discover a more general willingness to cooperate with each other and an improved ability to be good neighbors with one another. The landlord is no longer compelled then to deal with repetitive complaints from them.
Conclusion
Mediation is a powerful process that offers people the
chance to take control of their disputes and to be responsible
for their resolution. The possibilities of mediation
are greatest before a lawsuit is filed. Landlords and
tenants who have problems they need to resolve, and
difficulty resolving them on their own, should ask a
skilled mediator for assistance. This is the best opportunity
to solve the problem in a way that will maintain and
even improve their relationship.
The opinions expressed in this article are those of the author and do not necessarily reflect the viewpoint of the SFAA or the San Francisco Apartment Magazine. Laura Farrow, an attorney mediator, mediates a broad range of disputes, including landlord/tenant, real estate, employment, probate, partnership and commercial disputes. Laura teaches mediation at two major California law schools; and is past chair of the Alternative Dispute Resolution Section of the Bar Association of San Francisco. She can be reached at 415-383-1301. Copyright © 2004.