Our civil litigation system offers poor and middle class
people little or no practical access to the courts to resolve
disputes that have a huge impact on their lives. Dispute resolution
services can and should be deployed to help address neighbor
conflicts that make life almost unbearable for people who, as a
practical matter, have nowhere to turn except to the police. We in
the bar association should take a leading role in developing a
delivery system to bring the many benefits of dispute resolution
services to meet this pressing need.
One enormous swath of the landscape of human relations and
therefore conflict is occupied by the relationships between people
who live close together, either as neighbors, co-tenants, members
of a condominium association, family members, or roommates. Living
within shouting distance of people turns out not to be so easy.
Conflicts escalate very quickly over seemingly minor squabbles and,
once that happens, prove hard to dial back. People, even siblings,
stop speaking to each other. People quickly become hypervigilant
about every disturbance, every noise, and every failure to abide by
the rules. Distrustful, disempowered owners of units in small,
unmanaged condominiums withhold fees and, consequently, repairs are
not made. Controlling owners simply bypass the condominium board
and make unauthorized changes, confident that litigation is not an
option. People move. Or they react. Badly. Sometimes violently.
These are not small problems to the parties to the conflict, or
to society at large, and they are not rare. But there is no
practical forum for these sorts of disputes to be resolved unless
the parties have the means to sue. Most often, the cost is
prohibitive. And, even if the parties have the means and think it
is worth deploying them in litigation, resolution is likely to be
years off and unsatisfactory to at least one party. Legal claims
may drive only a small part of the conflict. Indeed, there may be
no legal cause of action available to resolve segments of the
conflict at all.
Desperate, outraged neighbors in crisis resort to the nuclear
option: they call the police. Looking for relief and vindication
and maybe hoping that the neighbor will be punished, they are
willing, in that moment, to sacrifice any hope of improving the
relationship. And, to their dismay, the nuclear option fizzles. The
police seldom take neighbor conflicts about noise or late parties,
parking, pets, or any of the host of what appear to them to be
trivial or temporary concerns seriously unless some crime has been
committed, preferably in their presence. Their involvement rarely
improves the situation. Assuming no one is arrested, the police may
give the offending neighbor a warning or decide that nothing is
amiss. The complaining neighbor has lost face, while the conflict
partner may feel vindicated, harassed, aggravated, angry,
embarrassed - but not necessarily deterred. Not much is
accomplished by deploying the scorched-earth tactic of calling the
police, but it assuredly signals a point of no return to cordial
neighborly relations.
The need for a different approach is clear. The answer, in my
view, is not to make litigation to resolve these claims more
affordable and accessible. Nor, is it to encourage neighbors to
call the police more often. The answer is to make efficient,
productive, preferably transformative dispute resolution services
widely available. Neighborhood ombudsmen, mediation, and
facilitation services all offer means for breaking the impasse and
even hitting the relationship reset button, cheaply, quickly, and
in a face-saving way, which resort to the police and the courts
does not.
The potential to actually restore relationships and to establish
agreements for how conflicts will be addressed in the future is far
greater in mediation than in litigation or in calling the police. I
have mediated cases among warring neighbors who progressed in the
course of two hours from refusing to be in the same room together
to spontaneously apologizing. In almost 35 years as a litigator, I
have never once seen parties to litigation emerge from a courtroom
arm in arm, apologizing for past insults. I'm sure my experience
mirrors most of my colleagues'. The fact is: a system that
designates winners and losers is not likely to improve
relationships that are not easily severed.
Why hasn't a system of neighbor dispute resolution emerged from
the huge need? One problem is that the public is not generally
aware that mediation is available to address neighbor conflict.
And, if one party to the conflict does consider mediation, the
problem then is how to get the other party to participate.
Litigation, for all its ills, does provide the necessary leverage.
In the absence of litigation, can it be done?
There are some contexts in which the parties to conflict could
readily be steered to try mediation, but for various reasons,
mediation has been overlooked or underutilized as a tool. For
example, condominiums could adopt mediation as the means of first
resort to resolve disputes among unit owners or owners and the
board, but most in Massachusetts do not. There are at least two
reasons for this. One, boards and property managers tend to favor
the in terrorem effects of assessed penalties and
fee-shifting litigation. Two, current Massachusetts law does not
explicitly authorize condominium documents even to include
mediation as an option, much less require it. A bill was introduced
last year to address this problem, but died in committee. One hopes
a similar bill will gain better traction this session to bring
Massachusetts in line with many other jurisdictions that recognize
that mediation is an important tool in condominium management.
Property managers of large apartment complexes could similarly
steer neighbors in conflict to mediation if it were readily
available.
In other neighbor contexts, there is no obvious mechanism for
bringing the parties to the table unless litigation has been
commenced, the specter of litigation is looming, or some public
agency gets involved in the dispute. I think more could be done.
Cities and towns could provide neighborhood ombudsmen and refer
complaining constituents to mediators instead of the police. The
police, too, could respond to complaints by suggesting the option
of an ombudsman or a mediator, and either contracting to provide
such services as a public benefit or referring complainants to
existing private panels. The bar association could organize panels
of practitioners willing to mediate neighbor disputes, possibly at
discounted rates or pro bono.
One remaining, and possibly intractable, difficulty is in
getting the non-complaining neighbor to participate in any informal
process. I see no easy solution to this problem; mediation is,
after all, voluntary. Some people will have every interest in
stonewalling any process that alters the status quo, particularly
where there are economic and power imbalances. But, in many cases,
where there is a bona fide difference of opinion and a mutual
desire to resolve the conflict, or where the complaining party has
the ability to escalate the conflict, the referring agency - be it
the police, the city's constituent services office, a neighborhood
association, condominium board, property manager, landlord or the
bar association - can play a useful role in inviting and even
persuading the non-complainant to come to the table.
Just as dispute resolution is no longer considered a mere
alternative to litigation, it should no longer be a mere adjunct.
It should stand on its own, independent of the court system. We
should develop ways to bring needed dispute resolution services to
the people who need them most - those who need help managing the
conflict endemic to living together in ongoing relationships. This
is exactly the context in which mediation most shines: empowering
the parties to communicate their needs effectively, in creating a
safe space for parties in intractable conflict to give voice to
their grievances, and assisting in the process of finding a way out
of the morass.