Mediation Theater

By Rudolph Kass

Palais Garnier, Opera House, Paris

“How many ages hence shall this our lofty scene be acted over in states unborn and accents yet unknown.”[1] Consider these scenes from mediation theater:

Scene 1:The conflict is about major water damage to ten units in a 110-unit condominium caused by a defect in the construction of the building.  The unit owners’ association has been slow to react.  Therefore, the owners have decided to move on their own against: the condominium developer who sold them their units; the general contractor who built the condominium; and the architect who designed it.

The parties elect to take a stab at mediating their dispute. At the mediation, the unit owners assert damages of $180,000.  The defendants, each of whom has their own counsel, respond that such an amount is vastly overstated. They offer to settle the case at $24,000.  There follow three hours of haggling, at the end of which the demand is down to $60,000, and the response is $57,000.  Each side proclaims it has now gone as far as it can go.  The mediator – gently – points out that the parties are now only $3,000 apart. If they adopt the judgment of Solomon, i.e, a 50-50 split, they will settle the case at $58,500 to be paid to the plaintiffs by the defendants.  Instead of hand shaking, heads shake; visages darken.

Scene 2: Pierce and Strong are neighbors in a single-family subdivision.  Pierce plants a hedge of arborvitae along the line of a prior planting of low shrubs that appear to mark the boundary between the Pierce and the Strong lots. Twenty-five years later, in connection with putting his house on the market, Strong orders a land survey and learns that the row of arborvitae, for its entire length, is planted three feet on his property.  

Armed with his survey, Strong calls on Pierce, shows him the survey, and tells Pierce, politely, that the arborvitae must go. Pierce, in a less polite way, tells Strong he must be out of his mind.  Strong shouts, “It’s on my land – you’re stealing my land!” Pierce responds that the arborvitae have been there for more than 20 years and claims adverse possession.

After consulting with his niece, a lawyer, Strong tells his neighbor, “There’s no adverse possession.  I gave you permission to plant those trees, but I did not give you permission to steal from my property.”

Strong brings a trespass action against Pierce in the Land Court.  At a status conference, the Land Court judge suggests that the parties might do well to resolve their dispute through mediation.  At mediation Pierce offers $10,000 in compensation. Strong is insulted.

Scene 3: Barbara Bushbee is a manager of human services at 21st Century Breakthroughs, Inc. Earl Mannik, an erratic but brilliant mathematician, makes unwanted advances upon two women is his department.  They complain to Bushbee.  She sends for Mannik and warns him if there are further such incidents, he’ll be fired. Upper management learns about the incident and tells Bushbee that Mannik is one of the company’s most valuable employees, and if she makes further threats like that, she will be fired.

Mannik accumulates a sorry record of recidivism, and Bushbee fires him.  In turn, 21st Century Breakthroughs, Inc. fires Bushbee.  There follows an action by Bushbee against 21st Century for retaliatory discharge. Her complaint says she was wrongfully fired for enforcing 21st Century’s internal rules of conduct and she alleges damages of $1,500,000.

In its answer, 21st Century says that Bushbee willfully ignored instructions from higher management and was deservedly fired.  The case goes to mediation. In response to Bushbee’s $1,500,000 demand, 21st Century offers $50,000.  Again, grim visages.

What is acted over in these three scenes, is personal anger: (1) condominium owners living with construction defects 24 hours a day; (2) neighbors at war over a boundary line; and (3) a human resources manager who did her job as she saw it and yet angered management by her contumacious ignoring senior management order.

In disputes between commercial consenting adults, there will certainly be some theater, several hours of it, but thereafter each party will begin to make risk assessments: the likely litigation expenses and the paralyzing effect on each of the parties if the dispute is allowed to fester.  In a cost/benefit analysis, the mediator can help. 

In cases involving intense anger, can the mediator intervene constructively?  Yes, by moving the conversation from the damage done to the possibilities of undoing them.  Putting the onus of the solution on a third party has promise of extracting parties from their dug-in positions. 

As an example, in the first case the mediator might suggest the parties the engage the expertise of an engineer to make realistic estimates of the cost of making necessary repairs and suggest to the defendants that if they split the repair bill, it will cost them a whole lot less than litigating the disputes.

In the second case, to rise above principle: The mediator suggests to each party that it is time to take a deep breath.  Yes, the arborvitae do encroach on the Strong’s property. The Pierce and Strong families, however, had been cordial neighbors for more than 30 years.  Suppose the new lot dividing line were moved back to the arborvitae, and Pierce paid Strong the amount per square foot for vacant land in their neighborhood – the dollar amount to be determined by a real estate broker or appraiser.  Each party consults counsel about the expenses of trial.  Peace comes into the room. A grumpy peace.

In both Scene 1 and Scene 2, relatively low cost solutions may get parties over their respective humps.  Getting parties to yes may not be fast.  There is something in the human species that causes parties to stick to their positions because any give will be seen as a sign of weakness.  Part of a frozen negotiation posture is a party’s – perhaps subliminal – assumption that if they just hang in there, the other partner to the negotiation will cave, even if just a little.  If a party is totally unwilling to budge from its initial position, the mediator may fairly ask:  “ What did you come to mediate?”      

The third case is the hardest. Ms. Bushbee will feel not only anger for standing up for principle, but she is worried about unemployment.  She had been well paid by 21st CenturyIt is doubtful that 21st Century will give her a letter of recommendation.  In the world of commerce, secrets have a way of getting out: Mr. Mannik’s misconduct and Ms. Bushbee not being a “team player.”

This is where “vital interests” come in: Bushbee needs some money to tide her over, and 21st Century doesn’t want gossip on the street that it has a hostile environment for women. However sore with one another, 21st Century can announce that Ms. Bushbee is departing to pursue other opportunities; pay her a “bonus” of $500,000; and provide letters of recommendation, which the company recalls had been top notch.  Bushbee, for her part, agrees to speak no evil of 21st Century.

[1] Shakespeare, Julius Caesar, Act III, Scene 1