Resolving neighbor conflict: Getting the parties to the table

Issue March/April 2017 By Jeanne M. Kempthorne

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.

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