There’s a
trend in the legal community toward collaborative law. This is most often seen
in a family law setting, where two attorneys representing husband and wife try
to work together to resolve the thorny issues of diving up property and
arranging child custody and support. Often, with the consent and input of both parties, a neutral financial or other
professional will be brought in to assess the situation. This is different from
what we think of as a normal lawsuit, where dueling attorneys hire experts to
argue their side in court or even in mediation.
The two sides
go in, and often come, out of the experience as bitter adversaries, both sure
they have been treated unfairly.
Collaborative
law attempts to break this cycle of recrimination, mistrust and acrimony, by
taking the clients through a process whereby they work together to solve the
most pressing issues facing them, with the help of the neutral expert, weighing
the benefits of all options. When this
approach works, it can save money, time and the emotional well-being for all
concerned.
Applying this approach to Mediation:
In
circumstances where two neighbors are at an impasse over one of the neighbor’s
trees, boundary lines, easements or similar issues, a similar approach can be used in mediating
the dispute. The two parties would agree
to mediate the case with an attorney or community mediator and the use of a
neutral evaluator of the case, for instance, a licensed property surveyor or consulting
arborist trained in evaluating the health or hazard potential of trees. Rather than each party hiring an attorney and
their own experts, they agree to submit to an experienced expert’s advice in
their particular situation.
As with any
mediation, everything said is confidential and the parties are free to hire
attorneys and go to court, if they cannot resolve their differences. They will, however, have a much clearer idea
of what the outcome is likely to be after having gone through mediation with a
neutral professional evaluating the matter from a detached, scientific point of
view.
Here is what
one lawyer said about the use of neutral experts in mediation:
The expert is jointly hired by both sides and
the cost is shared equally by both sides. The expert’s role is to openly
provide independent, neutral expert information and analysis to both side and
more so, to the process as a whole. The non-aligned expert becomes a mutual
asset and a resource for all parties in developing options for settlement.
Shared costs. Shared usage. Heightened value.
The joint use of a neutral, independent expert is a beautiful thing: The client
pays less money and gets more value. And the experts find it liberating and
freeing, allowing them to do their best work. (Michael Zeytoonian, http://www.disputeresolutioncounsel.com/2009/06/using-neutral-experts-in-mediation/#more-81)
Getting your neighbor to agree to mediation:
Consider taking your neighbor dispute to mediation and share the cost
of having an attorney-mediator and neutral expert serve you, and help resolve
your issues and keep peace in the block. You will need to initiate contact with
the neighbor and try to overcome whatever hostility may have already developed
that has brought you to an impasse.
You need to explain that you would rather not have to engage the
services of a lawyer and hire an expert to represent your views, but that if you can’t resolve the differences, you may
be forced to do so. If you end up in
court, the judge is most likely to send you to mediation anyway. In the meantime, both parties will have spent
hundreds, possibly thousands just to be back at square one.
Then offer mediation with a skilled, experienced neutral expert who can
evaluate the problem and recommend a mutually beneficial course of action or at
least let both sides understand their options and likelihood of prevailing at
trial should it go that far. The two of
you can jointly choose the neutral you feel most comfortable with. Lists can
often be found at your local bar association or you can look online, use the
yellow pages or ask for referrals from others.
Try mediation first. You have nothing to lose and you may find that
you can settle your differences and maintain a neighborly relationship in the
bargain.
