Thursday, February 28, 2013

Try Mediation with a Neutral Expert

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,

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.


Anonymous said...

Hi Dotty,

I have the opposite problem: my neighbor and I agree on an easement, but the Zoning Officer will not give me a permit saying that I need a variance.

I live in New Jersey and the side setback is 10 feet. I want to build a structure that will be only 5 feet from my neighbor's property. The Zoning Board denied my request for a variance. But my neighbor gave me an encroachment easement six feet into his property specifically allowing me to build the structure. I requested a permit from the Zoning Officer showing that I would be 11 feet from the new boundary thereby meeting the 10-foot setback. The Zoning Officer denied my permit request saying that I still needed to be 10 feet from the property line. I thought that the easement in essence moved the property line and therefore no variance would be required.

Dotty LeMieux said...

Thanks for writing to Land use News. I am only licensed to practice law in California, so any information I can provide is general. You may want to consult someone who does zoning law in your area. Generally, they want you to get a "lot split," that is actually purchase the property from the neighbor. You need to go through the permitting process, and there are forms and so forth, so don't pay him anything yet. I don't know your situation, and there may be other factors at work, and other agencies involved, like the Fire Department and so forth. So ask the permitting agency if they allow such a split, then ask your neighbor if he will do it. After that, you may or may not need the help of an attorney to finalize matters.

Good luck.