By Dan Simon
“They’re just sore losers,” Myrna said. She had called me to ask whether I’d mediate between her and her neighbors, who were complaining about a fence she’d built and various other things. She’d won in arbitration, but the Smiths didn’t like the arbitrator’s decision, so they sued her in state court. The court told them, and their lawyers apparently agreed, that they should try ADR first. Myrna liked what she’d read on my website about my “non-legalistic” approach. I said I’d be happy to help. Myrna said she’d ask her lawyer to suggest me to the Smiths’ lawyer.
The Smiths’ lawyer, Bob, called me after hearing from a partner at his firm that my “unique” approach might make sense for a neighbor-toneighbor dispute. Bob asked if I wanted pre-mediation submissions, I said there was no need as far as I was concerned. But I said that if anyone thought there was something I needed to know, they were welcome to share it with me, as well as with the other side (I reminded Bob that I’m not a decision-maker or an evaluator, so communicating with the other side was what really mattered). I also told Bob that it was the parties’ choice whether their lawyers attended the mediation. Bob made no comment on that question, but he told me that he and the other lawyer agreed that they would create summaries of their arguments and submit them to me and to each other before the mediation.
I heard from Myrna several days before the mediation that she was disappointed to learn that the Smiths would be bringing Bob to the mediation, as Myrna had decided to leave her lawyer out of it. She wondered if, given that, I could arrange for her to be in a separate room from Bob and the Smiths, since it wouldn’t be fair for her to BaD Fences make BaD neighBors by Dan SimonFall 2012 | 15 Focus be in the same room with Bob. Her lawyer had told her that that was usually how mediations were done, anyway. I told her I’d be happy to conduct the mediation in any way that all the parties were comfortable with, but that I’m not capable of communicating anyone’s message as clearly as they are. Two days before the mediation, I received Bob’s legal summary, along with some photos. I also received a call from Myrna saying that she planned to bring a friend for support.
The most striking part of Bob’s submissions was a photo of the fence that Myrna had erected. It looked to be about 12 inches from the Smiths’ door, and it blocked half of the door before jutting outward another three feet. From those photos, I could understand the Smiths’ frustration.
On the day of the mediation, I was glad I had reserved the big conference room. I hadn’t known that both Smiths would be there; and I hadn’t known that Myrna would bring two friends. I asked, specifically for Myrna’s sake (to acknowledge her previously stated preference for separate rooms) if it would be ok for us all to gather in the big conference room so I could briefly introduce myself and the process. Myrna quickly, convincingly said that would be fine, as did everyone else. So Bob the lawyer, Dave Smith, Angie Smith, Myrna, Myrna’s two friends, and I sat down around the big conference table. I gave my standard introduction where I told them that I was there to support their conversation. I emphasized that they call all the shots in mediation and determine how the conversation unfolds.
Then I said, “How would you like to start?”
After a brief pause, Myrna turned to Dave Smith and said, “I’d like to know what your favorite outcome would be.” Dave responded and said, “Ok, I’d like you to remove the fence, give us an easement so we can walk around our house, remove the trees that you’ve planted that obstructs our view of the river, and pay us $25,000 for all the hassles we’ve been through with you.” I reflected on what Dave had said.
Myrna said, “Ok, well, I can tell this isn’t going to go anywhere. But let me get a few things off my chest.” With me occasionally reflecting, Myrna told this story: “I had an understanding with the previous owners of your place, the Johnsons. I had given them permission to walk on my land all they wanted, including along the side of the house, where the fence is now. But I was always doing that as a favor to them. I had sold them that lot and that was part of our informal understanding. When they told me they were selling, I agreed to grant them a full-fledged easement, so they could pass on to the buyers (who turned out to be you two) the right to walk around the house. We agreed on a price of $10,000 for that easement. They backed out on that deal, so there is no easement. As you know, the arbitrator agreed with me on that. The fence is on my land. So despite your lawyer’s arguments, I have every legal right to have that fence there. What’s more, I was very careful to put that fence on my land, because I didn’t want any more confusion with you two. Your lawyer’s argument that this is a ‘spite fence’ is simply not true. I am not a spiteful person.”
“Oh really?” said Dave. He continued, “When we first moved in, the first thing we heard from you was that we owed you $10,000, that wasn’t exactly the most neighborly way to welcome us.”
“Yes,” said Angie, “Demanding $10,000…I don’t know if spiteful is the word, but it didn’t really get our relationship off on the right foot. And the Johnson’s have a whole different story about what your deal with them was. They told us we already had the easement. That $10,000 issue, as far as we could tell, was between you and them. Bob chimed in that a “‘spite fence’ is the legal term for a fence that is raised with no legitimate purpose other than to annoy the neighbors. No one was necessarily calling you spiteful; we’re just saying that this was a ‘spite fence.’”
“I’m calling her spiteful!” Dave said. “Why else would you put that fence there? It doesn’t add to your tenants’ privacy – it’s chain-link. Nor does it add to the beauty of the yards. Part of the appeal of that neighborhood was its openness. And planting those trees down at the end of the yard – that does nothing but block our view of the river. Yes, I believe you did all of this out of spite.”
“I’m spiteful? You’re the ones who are suing me now, even after an arbitrator told you you were wrong!”
“We’ve always been willing to talk about this with you, Myrna.”
“No you haven’t – you absolutely refused to talk about this.”
“We refused to talk about paying you $10,000, but you’re the one who said you didn’t want to talk last time.
“Well, at that point, I wasn’t interested in talking with you and the Johnsons. The Johnsons are your friends, they’re on your side. And then you wanted to talk with your lawyer there. I wanted to talk like normal people do. And the real problem is how you’ve been acting since the day you moved in. My tenants told me they saw you, Dave, step out of that side door, wave your arm at both back yards and say, ‘this is my back yard.’ And all the times I saw you and your friends walking on my yard on the way down to the river? I have my tenants to think of. Gary says you two are always looking over into our yard; and they got sick of you two and your friends walking down to the river on our yard.”
“Gary?” Angie and Dave looked at each other. “We have a GREAT relationship with Gary. I can’t believe he complained about us.”
“Well, he has.”
“That’s really surprising,” said Angie. “We talk to him all the time. He comes to our parties. We were extra careful to be cool with him, because of all the tension with you. That’s hard to believe that he complained about us.”
“Well I can understand why he might not want to tell you to your face.”
Throughout this conversation, I carefully reflected on what each person said and perdiodically I stepped in to summarize what someone had said. At about this point, Angie Smith suggested that we all take a break. I looked around and saw that everyone seemed to agree that now would be a good time. I pointed out that my office, down the hall, had coffee and other beverages. I told the parties that I would check in with everyone to see if they wanted to talk to me about anything individually. After spending a few minutes with Myrna and her friends in the conference room, I checked on the Smith group who had gathered in my office. When I arrived there, Angie Smith said, “Would it be ok if just the three of us talked, Myrna, you and I?” I said that that would be fine with me if it was ok with everybody else. “I just think I might be able to get further with her, because I think Dave and she have too much bad history.” I responded, “Sounds good, would you like to suggest it to her?”
So Angie and I walked back down the hall, I poked my head in the room and said, “Angie’s here and wants to make a suggestion – is that ok?”
“Sure,” said Myrna.
I held the door open for Angie, and she said, “I’m wondering if I could just talk to you alone, with the mediator, Dan”
Myrna, said, “and without your lawyer, either?”
Angie, said, “Right, just you, me and Dan.”
Myrna, said, “I think that’s a great idea.”
The others filed out of the room and Angie, Myrna, and I sat down. The conversation between Angie and Myrna took about 45 minutes. Angie said, “I had no idea how hard this has been for you. But I want you to understand that it’s been hard for us, too.” Myrna said, “I do understand that now. I still don’t like your husband’s attitude, but now I at least know that you’re a decent person.” Angie responded, “Dave really isn’t as bad as he seems – a lot of people think he’s absolutely great – it’s just the way this whole thing happened – he does think you’re just being spiteful.”
Essentially, Angie and Myrna had a good old-fashioned heart-toheart. In that 45 minutes, they also agreed that Myrna would move the fence, far enough from the Smiths’ house so they could walk around it comfortably. They also agreed that the Smiths would pay to move the fence and maybe for a nicer fence. Myrna also agreed to keep her new bushes on the border trimmed to 5 feet in height or less. Myrna and Angie would meet in a couple days to decide exactly where the fence would go. They agreed that this would be a “license,” as opposed to an easement, so that Myrna could reconsider her options in case she wanted to sell, or in case new people bought the Smiths’ land. And they agreed they’d work with Myrna’s lawyer on the language of the license.
After Angie had a chance to explain the understanding to Dave, the whole group gathered again.
After the whole group reviewed Angie and Myrna’s understanding and Dave consented, Myrna announced, “One more thing…I’d like an apology from Bob.” She continued, “Bob, the things you’ve written in your letters to me and in your argument to the mediator were not necessary and were very hurtful.”
Bob, who had been impressively quiet throughout the mediation, said, “Myrna, I’m sorry. In my role as advocate I do things with the intent to protect my clients’ rights, and I’m aware that those things can be offensive, and I’m sorry about that.”
Myrna said, “thank you.”
As the group walked out, they all thanked me. I reminded Bob that mediation works for personal injury, construction cases, and any case where people are in conflict. Bob said, “I’ll keep you in mind. You’ve got two people in your corner at my firm now.”
I’m fortunate to have a model of mediation that allows the parties’ insights to guide the conversation. My style allowed Myrna’s awareness of what she needed to get off her chest and Angie’s instinct to talk directly to Myrna to significantly change the course of the mediation. Those insights could not have come from me. The transformative model I employ as a mediator gives me permission to support clients as they discover what they need.
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