May 20, 2020
Successful athletes, owners and coaches share a passion for winning. In 2020, ESPN aired a documentary about Michael Jordan’s Chicago Bulls basketball dynasty. Cancellation of professional sports during the Coronavirus is a disappointment to many Americans. Basketball Hall of Famer Steve Nash once said, “Nothing is black-and-white, except for winning and losing, and maybe that’s why people gravitate to that so much.” Attorneys and their clients also love winning, hate losing and look for things in black or white. When a client interviews a potential attorney, they want to know whether the attorney thinks that they can win, what that victory would look like, and what it would take to get there. The attorney is interested in learning what the client’s expectations are, what evidence exists, what the legal issues are and whether the client has the resolve and resources to take the case to trial if necessary. According to Ken Shigley, past president of the Georgia Bar, an attorney should, “Accept only cases you would be willing to take to trial.” The best time to have a “moment of truth” about the wisdom or meritoriousness of a lawsuit is before initial filing. The outcome of litigation is typically harsh for the losing side. Property owners value their sense of control, and submission of a case to a judge or jury means relinquishing control over major questions about the future. These are important considerations in cases among neighbors, HOAs, condominium associations, lenders, landlords, tenants, or contractors. Property and construction cases often include more than controversy over payment of a disputed sum. In property law, parties look to the court to resolve disputes concerning boundary lines, easements, walls shared among townhouses, the validity of legal documents, partition of property among multiple co-owners, injunctions against stormwater nuisances, and so on. After hearing evidence and argument, the court may make findings and rulings contrary to both sides’ legal positions. Whether the property represents an owner’s home, business or investment, there is always a “bigger picture” to their plans, needs and expectations that exceeds the scope of what could be won or lost in court.
Usually it is best for parties to settle the dispute on terms that all can live with. At trial, the judge applies the law to the testimony and documents entered into evidence in the context of the remedies requested in the pleadings. In settlement, the parties’ negotiations are not limited that way. It is not always enough for the parties to work out the terms of settlement simply by discussing the dispute with each other and the lawyers. It can be difficult to arrive at mutually acceptable terms by exchange or emails or letters. Settling disputes requires momentum in negotiations, which is difficult to achieve through emails or voicemails. Matters are in litigation because of pre-existing animosity that gave rise to the seemingly intractable dispute.
Fortunately, there are ways to resolve many legal disputes without the risks and expenses of further litigation or arbitration. Many property or construction cases are suitable for mediation as a form of alternative dispute resolution. In mediation, a retired judge or experienced attorney facilitates settlement negotiations. Some courts have institutionalized mediation programs. For example, in D.C. Superior Court, parties to go through a mediation program before the pretrial conference. The D.C. court mediators are local attorneys with stipends paid for out of the court’s budget. In courts that do not sponsor mediation, parties can obtain it through mediators who charge by the hour. Many judges go on to work as mediators after they retire from the bench.
The mediator does not decide the case or “rule” on any issues. What goes on in mediation is confidential. If the parties do not reach an agreement, then the case continues in court or arbitration. Both sides have the option of leaving at any time if they believe that the mediation is not working.
Mediation makes sense in the context of the coronavirus epidemic and the evolving changes in court operations. Virginia courts are just starting to reschedule in-person hearings and trials in civil cases. Private mediations do not require scheduling by the court or use of government buildings. If the court decides to push the trial date out 6-18 more months, the parties may want to mediate to get it over faster. Some mediators are willing to conduct sessions by remote meeting technology such as Zoom or Webex.
Before mediation, the parties submit copies of lawsuits, contracts, statements, etc. for review by the mediator. Mediation begins with the parties meeting at the court’s mediation center or the offices of a law firm. The mediator will explain how mediation works and answer questions. Mediators ask the parties to sign mediation agreements that spell out the confidential nature of the activity and the fees required, if any. After this, each side will break out into separate conference rooms. The mediator will go back and forth, listening to each side explain the facts, their expectations, and details of the settlement negotiations. It is a good idea to bring relevant documents and files to the mediation to facilitate these discussions. Parties who are well prepared are more likely to get their needs met. Some mediators tell participants that they will share with the other side whatever you share with the mediator, unless someone tells them to keep it confidential. Other mediators have the practice of only disclosing to the other side the confidence that someone expressly authorizes the mediator to share.
Mediation can take several hours. It is common for parties to be in mediation all day. It is a bad idea to schedule other things in the late afternoon or evening with the expectation that the mediation will be successful or abandoned by a set time.
Mediation is valuable in disputes between owners of neighboring parties. In family law, disputes between parents over child custody can be acrimonious. Challenges of shared custody are not placed on hold because litigation is threatened or pending. Sometimes new disputes can erupt during litigation that affect the case or the settlement negotiations. Disputes over boundary lines, easements, party walls, water channels, etc. are challenging in the sense that the parties need to maintain and use their property rights while the case has not yet been resolved. Often, one or both parties want to continue to live there for many years thereafter. Mediation offers a way out of disputes which have the potential to continue for years, even after the judge makes rulings at trial. In disputes between adjoining property owners, there is a value to cases being over in a fashion that is acceptable that well exceeds taking the matter to trial, after which there may be additional conflicts in court or on the premises. In such cases, the parties have interests that go beyond the exchange of money. I believe in exploring use of retired judges as mediators in disputes between owners of adjoining parcels of land. Mediation is also used to resolve disputes between lot or unit owners and their community association boards.
Sometimes the parties lack interest in mediation at the beginning, but later, for various reasons, become less reluctant to negotiate compromises. Mediation only works when both sides are willing to engage in a discussion that entails some compromise.
To be clear, I love winning and hate losing. That said, there is a bigger picture in property disputes than who wins and how big. Art Rooney, owner of the Pittsburg Steelers, once said, “The biggest thrill wasn’t in winning on Sunday but in meeting the payroll on Monday.” Whether they own a 500 square-foot studio apartment condominium unit or a large commercial property, landowners need to think more like Mr. Rooney and less like Vince Lombardy. Property cases are unique because they touch on such basic questions about human relationships, ambitions, and sense of safety. For many owners, mediation is the best route to secure their best interests and get past the current problems.