By 
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 her beach ball went missing. Perhaps a neighbor doesn’t want his children exposed to strip-swimming parties next door. Or there may be a condo owner complaining about another owner’s discriminatory behavior. Where there are people, there are conflicts, but all these conflicts can be eliminated by simple mediation.
Any type of dispute between individuals is appropriate for mediation: a divorce settlement, a dispute between landlords and tenants, or a misunderstanding between the worker and the employer. But by far the most common disputes that end up in mediation are neighbor-to-neighbor or family-to-family disputes. The law recognizes that landowners, or those in legitimate possession of the land (tenants or guests), have the right to intact condition of the property and reasonable comfort and convenience in occupancy. This is known as “quiet enjoyment” of the land.
The problem arises when the “quiet enjoyment” of one person violates the “quiet enjoyment” of his neighbor. Mediation can resolve these issues more economically and satisfactorily than litigation. Whereas in a lawsuit or arbitration only one party wins, in mediation ALL parties end up receiving something they can be satisfied with.
For example, Joe and Bill live next door to each other. Joe’s pine tree, planted by his great-grandfather, stands along the fence that borders Bill’s property and sheds its needles regularly. Bill complains that the needles from the tree fall into his pool and clog the drain, requiring many hours a week of both pool maintenance costs and Bill’s personal labor to keep the machinery running and the clean pool. Bill wants the tree cut down, so he doesn’t have additional expenses and hours cleaning the pool when he could be doing something else, which is lack of quiet enjoyment. Joe refuses to cut down the tree because it has deep sentimental value which is the quiet enjoyment of it.
If Bill sues Joe in small claims court, one person will win and the other will lose and will have to pay the filing and service costs. Both parties will live under stress until the case is decided, and after the decision, the neighbors may never get along again. If the value of the tree and services exceeds $10,000, the lawsuit will go to Superior Court and both parties will have to pay filing fees of at least $395 and attorneys’ fees. Each party’s attorney’s fees for a bench trial decided by a judge can be $50,000 or more.
On the other hand, if both Bill and Joe agree to mediate, they will talk through the problem, identify exactly what each party needs in the situation, and come up with a solution that both parties agree on. One such solution, suggested during the mediation process by the parties themselves, might be for Joe to keep his tree and his quiet enjoyment, but Joe will pay Bill a monthly sum for the additional cost of pool care required by the parties. the fall of its needles, which will give Bill his quiet enjoyment. A mediation agreement will be signed and both parties are satisfied with their own solution. Maybe they will even become good friends.
The good thing about a mediation is that the agreement is a private agreement. You don’t necessarily have to follow the law, as long as all parties involved are happy with the agreement. The agreement may 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 discontent.
One case I saw was a juvenile vandalism case that cost the property owner thousands of dollars. The juvenile was seeking detention time, community service, and aggravation by family and friends. The homeowner, however, was willing not to press criminal charges as long as the young man worked to pay off the debt by gardening and washing the family’s cars every week for a year. Every time that young man tended the property owner’s yard or cleaned his car, he learned the valuable lesson that doing good brings his own rewards. Both parties were satisfied with the deal, and the law was circumvented by a mediation agreement.
For cases of very small monetary value, free mediations are available through local county dispute resolution programs. Private mediators charge by the hour and the fee, starting at $250 per hour, is generally split between the parties to the mediation. A mediation can take place from one to ten hours or more, depending on the will of the parties. Sometimes a stalemate is reached and the parties have to come back another day. I have heard of mediations in a divorce settlement costing $500 and in civil litigation costing $9000. Taken in perspective, those fees are cheap compared to $50,000 per side for the court to decide on a winner with everyone paying filing and attorney fees out of pocket and no one is really satisfied.
If you or someone you know has a serious dispute with a friend, family member or business associate and wants to sue to resolve it, encourage the parties to seek a mediator for a less costly and less stressful true win-win outcome.