Thinking about mediation? Mediation may or may not be for you. One of the most important factors in considering mediation as an approach to resolving your dispute is just how much you and the other party are willing to move out of dispute mode and move into resolution mode. You might ask what does that mean?
Well, it means being willing to sit back and listen to each other, really listen, so that you each have a clear understanding of each other’s perspective as to what the dispute is really about. You may find that the positions you each bring to the table are not the real issues. The real issues may be the underlying interests each party brings to the table.
Complainant has a chain link fence in his backyard. His next door neighbor, the respondent in this case, cuts a tree down in his backyard accidentally causing the tree to fall on the complainants chain link fence, damaging three sections of the fence. The respondent and complainant agree that the respondent will repair the fence. Several days go by and the complainant hears nothing from the respondent. He does an independent search of the yellow pages and finds several companies in the surrounding area who install or repair fences. He tells respondent about his search and indicates he wants whoever repairs his fence to be from a reputable company he can check out in the yellow pages. Respondent tells the complainant he is looking for someone to fix his fence. Several days later, complainant overhears respondent talking to a man in his yard. It appears respondent is engaging this man to repair complainant’s fence. Complainant confronts the respondent and asks for the man’s credentials. The respondent gives him the man’s business card which lists him as a yardman, handyman and fence man. Complainant becomes angry and tells respondent this man is not properly experienced to fix his fence and will not be allowed to touch his fence. Complainant indicates he will have the fence repaired. Both parties exchange angry words and agree to take this matter to court.
The court refers the parties to mediation Throughout the opening statements and in caucus they each blame the other for the fence not being repaired by the respondent. Complainant wants respondent to reimburse him for the costs he incurred in having his fence repaired. More importantly, the complainant feels he has been legally harmed by his neighbor and wants his day in court, no matter what.
The respondent feels the complainant has damaged his reputation and, even though their negotiations at this point were only $200 apart, he isn’t willing to pay the full amount because he continues to believe the fence man he selected to fix complainant’s fence would have done a good job for a significantly lower price. He believes the complainant disrespected him and his ability to make a good business decision. He really wants an apology from the complainant.
The parties were unable to reach a mutually acceptable resolution to their dispute. They opted to have their day in court. For them, mediation wasn’t the best option.