Why Mediation is Preferable to Litigation in Landlord Tenant Disputes

Landlord-Tenant Mediation

Landlord-tenant mediation offers numerous advantages. First, it makes possible a quick resolution without significant cost; second, it can lead to a satisfactory resolution for both parties, whereas trial by judge or jury typically does not result in a win-win solution or compromise solution for both sides. There are several aspects to mediation that must be understood, however, before one can choose whether it is the best option. Typically, the first thought of those involved in a dispute is to engage in litigation. Yet, litigation is often too polarizing. During the entirety of the process, facts are presented without justification; each side is constrained to “yes” or “no” answers, and more often than not status of adversaries is cemented. On the contrary, mediation presents opportunities for each party to reconcile with themselves and with each other. This study will focus on the multifaceted aspects of landlord-tenant mediation, the type of mediation preferred, and the expected and unexpected settlement outcome. In contrast to a litigation process, landlord-tenant disagreements should focus disagreements within mediation avenues because judicial litigation is time-consuming, expensive, risky, and offers no significant long-term solution.

Introduction to Mediation

Researchers date the first mediatory practices circa 1682 (Lambert, 2017). One of the first known instances of mediation in the US comes from the records of Francis Daniel Pastorius. A German settler in the New World, Pastorius was able to speak both German and English and served as a valuable asset among both German and English communities. When disputes arose between the two groups, he could often act as an intermediary to help resolve issues. Pastorius also mediated among multicultural tribes in North America. The philosophy that motivated Pastorius and that guided his efforts in mediation was none other than the Golden Rule

Modern mediation is used as an alternative to litigation processes. Research suggests that mediation provides long-lasting closure and contentedness with settlements among parties that choose it as an option (Schwab, 2019; Waldinger, n.d.). One reason for this is that, as Pastorius showed, mediation is a practice by which two parties with differences come together to set those differences aside and work in a peaceable manner towards a solution that benefits them both. Oftentimes in disputes tempers can flare and emotions can get the upper hand. People can become self-righteous, indignant and adamant about their position, insisting on their argument and refusing to budge—which is why litigation is often their go-to process. Mediation allows for cooler heads to prevail and it allows for people to exercise the Golden Rule that Pastorius promoted in his own activity as mediator centuries ago (Lambert, 2017)

Models of mediation include the Facilitative, Transformative and Evaluative models. Each has its own utility and can be applied most effectively in certain situations. The Facilitative model of mediation focuses on structuring the process so that it benefits both parties and provides the desired win-win outcome. By asking questions of each party, the mediator validates their differing points of view, identifies common interests, and helps the parties find and assess their best options for an amicable resolution. In this model the mediator does not make recommendations but rather helps the parties to identify what they themselves can see is in their best interest. This model is best used when the parties are willing to act in good faith towards one another and are able to work in a spirit of compromise and understanding.

The Evaluative model is different in that it focuses on assessing the arguments of both sides and pointing out the weaknesses or flaws in each one. The mediator will point out to each side what a judge would say if presented with their individual arguments. Instead of focusing on needs or common interests, the mediator looks at the law and at the rights of the interested parties. Instead of seeking a spirit of commonality, the mediator adopts a more indifferent posture, viewing the proceedings from a perspective of what the law says and, in this manner, helping the parties to see what their actual options are from a legal point of view. In so doing, parties usually can be persuaded to adopt a resolution that best corresponds with their legal options. This option is best used when the parties are insisting on their rights without really understanding what the law says on the matter.

The Transformative model builds on the facilitative model in that it promotes a spirit of compromise and focuses on the interests and needs of the two parties. It goes a step further in that it also aims to empower both sides so that they can determine the best way forward for themselves and for one another. It is very much like teaching the two parties to fish so that in the future they can mediate amicably without having to resort even to a mediator’s services. The idea behind this is that it should transform society into a more peaceful place of community. It is best used when the parties are at odds with one another but have a mind to accomplish a higher good by looking out for one another, building positive relationships, and coming to a positive solution that benefits everyone (Carrier, 2018).

Landlord-Tenant Responsibilities

In the landlord-tenant contract, the responsibilities of both are typically described so that there is no confusion about who is responsible for what. However, the law serves as the guideline for these contracts and stipulates the following: Landlords have the responsibility to provide a habitable environment for their tenants. As prescribed within the rental agreement, the landlord will ensure that the tenant receives a functioning and healthy domain for monies paid. The landlord also has an obligation to continue structural and some appliance repair as necessary by definition of the landlord-tenant responsibility. Finally, the landlord must provide adequate response time to a tenant in the case of emergency maintenance or concerns (Law Depot, 2004).

Tenants also have responsibilities under the law. For example, they have the duty to maintain a useable habitat. As stated in the rental agreement, the tenant must maintain the living areas provided during move-in. This means a renter cannot allow a property to go to ruin. The tenant must inform the landlord of faulty equipment of structural property so that catastrophic consequences may be avoided. The tenant also has the responsibility to vacate the property leaving it in the same condition upon move-in (Law Depot, 2004).

Landlord-Tenant Disagreements

In spite of the stated duties and legal responsibilities of both tenants and landlords, disputes and disagreements can arise as to who owes what to whom. Disagreements tend to arise in two circumstances—disagreements after moving in, and disagreements upon vacating. A disagreement after moving in might occur in just about any type of setting, but one common situation is when landlords disagree with structural alterations made by the tenant—such as unauthorized painting, the unauthorized creation of access holes, or land beautification that the landlord has not given permission for (Waldinger, n.d.). Another example would be a tenant disagreement that results in the tenant withholding rent until demanded services are provided (e.g., maintenance, appliance replacement, or some health-related concern, such as mold growing on the walls of a room due to a water leak). In any of these cases, mediation can be used to resolve effectively the disagreement as the dispute tends to be a matter of looking at the legal obligations of the tenant and landlord. Evaluative mediation is best used in these cases.

Disagreements upon vacating also arise. These tend to be situations in which tenants do not leave the property in an acceptable state, or in which landlords disagree with the state of the property and choose to withhold the tenant’s security deposit. The disagreement in these cases tends to be subjective, as both parties have their own points of view. For these types of disagreements, facilitative mediation or transformative can be applied with a great deal of success.

Theorizing Type of Mediation Model

The theoretical use of facilitative, transformative or evaluative models of mediation can best be understood in terms of application and utility. For instance, as described above, some disagreements naturally lend themselves to certain models. In disagreements that arise over responsibilities of either party, a simple evaluative model would work best because it provides a legal perspective that helps the parties to understand their actual positions from the standpoint of the law. For other types of disagreements that are more subjective in nature, the other two models can be much more impactful for they help the parties humanize the dispute and see one another with more empathetic and understanding eyes.

Questions that should be asked when deciding which model to use can be simple and straight-forward. First, one should ask if mediation is even an acceptable recourse to the situation. If the parties do not agree to mediation, then it is not even an option. However, because mediation is not widely used it may simply be a matter of explaining what mediation is, why it is a favorable method, and how it can work to help the parties resolve their disagreement (Fodor & Bennett, 2010).

Another question to pose is one that gets more to the heart of practicality, pragmatism and utility—and the question is: Should mediation be agreed upon before signing a contractual agreement? In other words, should the parties in the landlord-tenant agreement commit themselves to using mediation to resolve any differences before signing a contract? Answering this question in the affirmative can be a good way to sidestep any problematic legal issues that might arise down the road. Foresight such as this can prevent a great many problems from arising as well. When parties know that they have the option of mediation, they may be more likely to address their issues among themselves—knowing that this is what a mediator is going to have them do anyway (Chen, Chen & Wu, 2017).

Understanding the theoretical approach and the positive or negative evaluation of each type of mediatory transaction can allow one to see why one transaction is better than another. The theoretical approach of facilitative and transformative mediation transaction is situated in the concept of servant leadership or the Golden Rule that Pastorius advocated: do unto others as you would have them do unto you. The pros of facilitative and transformative mediation are that it aims to help both parties take responsibility for their actions and develop better relationships. The cons of these approaches are that it often is a long process and just as often can fail to produce a win-win outcome or a compromise in which both parties can agree. If either party chooses to be stubborn, unyielding, inflexible or adamant there is nothing that the facilitative or transformative approach can do.

The evaluative approach, however, comes from a legal perspective and it operates on the theory that the law is the law and it determines what the outcome of a disagreement will be. The pros of the evaluative mediation transaction are that it provides a clear, objective method of reasoning that everyone can follow. It shows what the law is and why it applies in the case of the disagreement. It can indicate which party is in the right, based on the application of the law to the case, and it can be used to suggest what a judge would likely rule if the case were taken to court. Theoretically, this understanding should be enough for the disputants to resolve out of court. However, the main con of this approach is that it can embolden one side to want to litigate even more if he feels he is in the right. Why should he settle? That is the danger of using this approach. It can sometimes result in one side ending up homeless, which presents another set of problems altogether (Curcio, 1992).

Thus, there are also various possible outcomes of the landlord-tenant relationship that can occur as a result of mediation. In many cases, mediation can strengthen the relationship. However, this is not always going to be the case. Sometimes mediation will end without any resolution and the disagreement will proceed to litigation. In this event, the landlord-tenant relationship may become indefinitely tarnished. Should the landlord or tenant need to maintain a relationship after a rental agreement? The answer to this question can be debated, but from a pragmatic standpoint it is of course better if the landlord and tenant do maintain a relationship after signing a contract. The basis of facilitative and transformative mediation is rooted in this very idea.