Secretary of State, John Kerry, has said famously that if he could just get the relevant parties into the room, he could make a deal in almost any conflict. See “Negotiating the Whirlwind,” “The New Yorker,” December 21 & 28, 2015, pp. 66-77, at p. 66. Whether or not one agrees with his philosophy or approach to negotiation, or even his politics, he gives voice to a concern faced by nearly every mediator at one time or another: how can a mediator bring disputing parties to the table? This is an issue that can surface even if attorneys represent both sides. It is particularly problematic when parties are unrepresented and one contacts a mediator in an effort to resolve a situation before or instead of filing litigation.
How should the mediator respond?
A possible answer to this question is illustrated by a situation I recently encountered. A property owner contacted me and described a problem common in cities like Baltimore with thousands of 100+ year old rowhouses. He determined, after investigating and hiring a contractor, that water was seeping down the inside wall of the next door neighbor’s rowhouse and into his adjoining living room wall. Despite the repairs he had paid to have done, the situation could not be corrected without access to the roof and wall on the neighbor’s side. He and his neighbor had had a cordial relationship when he first bought the property several years ago, as the neighbor lived in his property then, and they would see each other occasionally. Now, however, each house was rented, and the neighbor refused to respond to texts requesting his involvement in fixing the problem. The owner who contacted me was concerned that he would lose his tenants, and that his property would lose value if the problem remained unaddressed. While he already had spent considerable money and effort without success, he did not want to incur further costs, stress, and time that he suspected litigation would entail. Plus, he understood the complex technical issues well, as he was an engineer, and knew that it might be difficult to explain the situation to a judge not versed in construction and plumbing.
How to bring the neighbor to the table?
The engineer, taking a practical approach consistent with his training, asked me to write a letter to the neighbor requesting him to participate in mediation, and offering me as the mediator. To the engineer, this seemed like a logical, straightforward way to proceed. I told him that I could not write such a letter, principally because doing so could compromise my neutrality in the eyes of the neighbor. He might perceive me, I explained, as already having sided with the engineer, and so would reject mediation, and me as the mediator. I already had discussed the concept of neutrality with the engineer when I outlined the process of mediation for him. And, I knew, although we did not discuss it, that such a letter might pose additional ethical issues for me.
I told him, however, that I had another idea: what if he were to write the letter? After all, he knew how to describe the plumbing and construction issues in a way that his neighbor, who was a plumber by trade, would understand. Both property owners had tenants they desired to keep. Neither owner wanted to see the value of his property decline due to damage that could be ameliorated at this early stage. Both probably wanted to avoid litigation. Perhaps a discussion could be opened which would clarify why the plumber seemed to be avoiding the engineer. Perhaps he was short on cash at the moment; perhaps he had family problems. In sum, it was in their mutual interest to mediate the matter: this was a perfect case for mediation. The engineer was persuaded. He decided to write the letter.
By proposing this course, I sought to shift responsibility for convening the parties from the mediator to the parties. I was seeking to empower them to initiate the process through which they could craft a mutually acceptable solution to their dispute. I was encouraging them, not me, “to bring the relevant parties into the room.” I hoped they would conclude that what they needed was not a John Kerry to bring them together, but simply a conversation between two good citizens.
Let’s see if this proposal works. How would you have handled the situation?