From the Mediator's Monthly Newsletter
Written by David Steiner
One of the hardest things in facilitative mediation is holding back information that might be useful to the disputants. As facilitative mediators, we state that we are neutral, impartial and do not give advice, but sometimes we know things that could help break through obstacles to a resolution. We are trained in these cases to elicit the information by asking questions. In a recent landlord-tenant dispute, l found myself in this position.
I am a landlord, and I know that the Chicago ordinance is clear about how security deposits should be returned to tenants. The landlord in the case I was mediating had not returned his tenant's security deposit for over two years. He insisted that he wanted to, but the tenant did not leave a forwarding address and he wanted to agree with her about the amount that he would withhold for fixes to the apartment.
The tenant wanted her money back and didn't agree with the cost of the fixes. She insisted that he reimburse the entire sum. She brought the case before the court because she desperately needed her money for an impending surgery.
In parsing out the needs and interests of the disputants, I learned that the landlord really wanted to be fair and felt he had an uncooperative former tenant. He was happy to be in court because he wanted a chance for justice to prevail. He said he couldn't return the security deposit until they agree on the amount. His tenant also wanted justice. She felt as if she left the apartment in the same condition she received it. She didn't agree with the fees he wanted to deduct, and she needed the cash. For her, justice was important but getting her security deposit would be enough. She didn't care whether she got her money back in front of a judge or at the mediation table.
Ed Sacks, a veteran mediator and champion of tenants' rights often teaches: "It's not your mediation. Let the disputants lead." I thought about Ed as I sat at the table. A miniaturized version of him sat on my shoulder whispering in my ear, "If they want justice, let them go before the judge." But another voice in my head, my father, who taught me about being a landlord said, "If this guy goes in front of the judge, he'll be fined for not returning the security deposit."
I was perplexed. I knew it wasn't my job to advise the parties, so I asked what the judge would say if she heard that he hadn't given back the deposit. They both speculated, so I asked, "Is there something that can help us better understand the law on this matter? Is there a lease?" Of course, I knew that the lease would reference the ordinance that explained how security deposits are to be returned. However, the disputants were so set in their concept of justice that they didn't want to look at the law, as articulated in the lease. They couldn't agree on an amount of security deposit to be returned, so they went back to court.
Thus, the mediation didn't resolve the dispute. And, as I had predicted, the court fined the landlord.
The judge later asked me why I didn't explain to the landlord the consequences of his decision. So, I again explained that – in the facilitative mediation model – that's simply not what we do as mediators. We help disputants define and communicate their needs and interests, but ultimately, whether they compromise is their choice alone. They wanted the court's ruling, and like it or not, that's what they received.