Always Expect the Unexpected

As an attorney and mediator for many years, I have learned the most important lesson for mediation: always expect the unexpected. Whether the parties send formal, lengthy briefs, replete with numerous citations to both facts and legal authorities, or whether they simply show up at the mandated start time, there are always surprises. A good mediator must be ready to handle any situation that arises, with patience, flexibility and a good sense of humor. And, the participants in the mediation must also exhibit these qualities to insure a successful outcome.

I have been on the mediation panel for CAI since its inception. I recently mediated a case through the CAI program involving a complaint from an owner that second-hand smoke from a unit next to the owner’s was permeating her unit, causing detrimental health effects and generally causing a nuisance. With the understanding that second-hand smoke is a declared carcinogen by the State of California, and knowing that many community associations and even entire cities have banned smoking entirely, I assumed that the parties might consider forming a -smoke free complex as a way to resolve the dispute. I was wrong. The complex happened to be composed of many smokers and others who took the “don’t tread on me” slogan to heart and did not believe anyone had the right to take away another’s right to smoke. The board of directors’ position reflected the sense of the community.

In addition to confronting an unusual and emphatic pro-smoking community, I was unprepared for the onslaught of 16 people who attended the mediation. The participants included the usual suspects: the board of directors, composed of 5 individuals, all of whom attended, and the association’s attorney, the complaining homeowner, 3 other homeowners who were her allies, and her attorney; the smoker and the smoker’s property manager, two grown children and the smoker’s attorney, for a total of 16 participants! While I knew I would be faced with 3 parties, and had arranged for rooms for them, I did not anticipate the need for so many additional people.

In mediation, the facilities are extremely important. All sides to the dispute must be able to have their positions stated, without being rushed, and feel as though their positions were heard. Since discussions among the separate parties are to remain confidential, the facilities must allow for each side to have their own space. The facilities must also be comfortable. The sheer amount of participants in the mediation discussed above was a challenge; finding enough chairs alone took some time. I was ultimately able to find enough chairs, an empty office, and use of an alternate coffee room, to allow all sides to be able to have their comfort and their privacy.

There was a great deal of acrimony and all sides needed to express their positions, most in vehement ways. However, despite all of the acrimony, the parties had not considered whether modifications to the buildings could solve the problem. Once all the parties had the opportunity to have their positions heard, the dispute was ultimately resolved. The association agreed to investigate ways to insulate the non-smoker’s unit, and the smoker agreed to pay a portion of the cost of the insulation.

Another mediation involved an owner who owned many condominium units throughout Southern California, and was using the units for short-term rentals. In addition to the business of renting multiple condominium units as hotel rooms, he had an airport pick-up business, picking up individuals from the airport and transporting them either to their “hotel” rooms in the units he owned in various condominium complexes, or to his units temporarily as a way station where they waited until their other, more traditional lodging was available. The board of directors of one of the associations in which the owner was conducting his business was fed up, and demanded that the owner comply with the CC&Rs which prohibited use of units for transient or hotel purposes.

Although the facilities for the mediation were appropriate, and each side had their own private, comfortable space, unexpectedly, some of the parties did not speak English, which led to difficulty in communication. All mediators will agree that the ability to communicate is instrumental in mediation and essential toward achieving a resolution of the dispute. Fortunately, one of the participants did speak both languages, and was an unexpectedly good interpreter. Often the most difficult time in achieving resolution of a conflict is at the end of the process where the parties see that the conflict is on the way toward resolution. Parties in conflict sometimes have trouble letting go of the conflict. The mediator’s job is to facilitate the parties’ ability to let go of the conflict and be able to see another, better way to interact. In this case, the board had issued a multitude of fines for many months against the homeowner for using his unit as a hotel, but had not attempted to collect the fines. The amount of fines had risen to many thousands of dollars.

Sometimes the imposition of fines, or the parties’ expenditure of attorney’s fees, are impediments to resolution. Recognizing this, I discussed the issue of the fines with the board. Early in the mediation, the board told me that the fines were not important, what was important was obtaining the owner’s compliance, and agreed to waive the fines. However, when all of the other issues were resolved, the board then changed its mind and wanted to collect 100 percent of the fines. After discussions with both sides, I recommended a solution that both parties agreed to, and the dispute was resolved.

Both of the above-discussed mediations had unexpected events; one, the sheer amount of participants and the pro-smoking bent of most of them, and the other, the inability of some of the key participants to speak English and the 11th hour refusal of the board to compromise on the issue of the fines. In both cases, I was able to adjust to the circumstances, keep the parties engaged, and facilitate a resolution.

Some people believe that a successful mediation ends where both sides are unhappy, but forced to live with their compromise. I choose to strive for a resolution that leaves both sides happy, satisfied with the result, and pleased that the conflict is over. In my experience, when the parties feel their positions were heard and given respect, and are a part of the solution, they end up satisfied with the outcome.


By Laura Snoke,
April, 2015


Connie Theron, Practising Attorney - UCT Law Clinic
“While working at the University of Stellenbosch Legal Aid Clinic and later at the UCT Law Clinic, I found the pro bono mediation services of Gerrie van der Watt of the Mediation Centre to be highly professional and extremely effective in our divorce matters. It is fantastic that our clients, with little or no financial means, can benefit from such an excellent programme.

The mediators are able to provide a non-threatening environment in which the clients are able to talk openly about issues that matter most to them, but which the Court in a divorce matter may choose not to entertain. Through the mediation sessions, the clients are able to reach an agreement together which ultimately they are both happy with. In cases where mediation did not yield the result of a settlement, the process was still extremely valuable, giving the parties better perspective and highlighting the key issues in dispute.”