When A Mediated Agreement Could Drive You To Drink ;-)

By Laura Melton Tucker, September 13th, 2009

Listen to this entry.

Imagine this conversation:  A woman walks into a bar, takes a seat, and says to the bartender: “Poor me a stiff one.  I just gave my ex-landlord every penny he sued me for, plus a $1,500.00 bonus.”  “Whoa,” responds the bartender, pouring her a shot, “there must be a story there.”  The woman smiles,  leans in to take a sip, and begins to tell the bartender her story.   Fade out.  Okay, this scenario is a complete fabrication.  But the  back story below, explaining this woman’s interaction with her landlord, is real.  So, read on, but don’t expect to find any clues as to what she might tell the bartender.  Without a court TV exit interview, the answer to that mystery is unknowable.

Here’s the scenario:  At a small claims mediation an evicted tenant and landlord meet to resolve a dispute over unpaid back rent and house damages.  The landlord plaintiff has asked for $X dollars.  The conversation is civil.  The landlord presents his case with dates, pictures and receipts.  The evicted tenant explains her mitigating circumstances with a heartfelt story of personal upheaval and unforeseen complications. In the course of the conversation, the defendant decides that she owes even more than the landlord has asked for.  She says she will compensate the landlord in full, and pay an extra $1,500.   My colleague, who shared this story without revealing details to compromise his client’s privacy, wrote the agreement believing that it reflected the informed decisions and choices of the parties, but it was difficult for him to walk away from the mediation without questioning, “What just happened?”

Several of us who heard this account at a brown bag meeting had similar stories of writing agreements to settle claims for an amount greater than the dollars asked for in the suit.  Each of us described feeling uneasy about doing so.  Had mediation served the needs of both parties, or had the mediation created a circumstance where one party agreed to something he or she didn’t fully understand and might regret later?  Our dilemma as mediators is determining how far we can go to ensure both parties are informed about their choices and options, without sacrificing our neutrality by directing pointed questions to shift the outcome of the mediation; something we might want to do, but can’t without violating our ethical responsibilities.

The mediator in this case, a seasoned pro, asked himself during and after the mediation if he’d done everything he could to help the renter make an informed decision.  The brown bag group wondered if the renter had made her decision based on pressure or fear of reprisal from the landlord. My colleague believed this was not the case.  He would have recused himself and sent the parties back to court to try their case if he’d felt the woman acted out of fear.  As mediators we knew that while our colleague may have felt uneasy about the renter’s decision to pay more than the landlord sought, he could not intervene.  Mediators can’t prod the parties with questions to steer them toward a “better outcome.”  This overly directive approach negates empowerment.  The true “promise of mediation” doesn’t come when the mediator solves the problems for the clients.  It comes when they solve their own problems, shifting their relationship when they begin to take the other person’s perspective into account as they work to find a mutually beneficial solution.

The benefits of a mediated agreement aren’t always clear to the mediator.  When one side ends up paying more than a suit requires, it feels wrong from a dollar and cents standpoint.  Yet, other needs may have factored into the decision that the mediator may not be privy to.  The takeaway is that self-determination includes the freedom to make  one’s own mistakes.  As mediators we can write agreements that seem unfair to us, providing the process that produced the agreement is rigorously thorough and fair. When my colleague escorted the landlord and renter back to the courtroom for the magistrate to review and sign their agreement, he took comfort knowing that the final decision belonged to the judge.  The judge signed the agreement, just as it was written.  Somewhere out there…is the rest of the story.

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