Handling Disputes

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Many groups create their agreement and go on to share happily ever after. Following the suggestions in "Communication Skills for Sharing," above, will prevent many conflicts from arising and nip others in the bud. Still, it's possible that you may find yourself in a dispute with others in your sharing group—or standing by while others in your sharing group have issues with each other. A variety of issues can arise, including disputes about:

  • interpersonal problems (such as communication styles, privacy, or personal boundaries)
  • property (such as use or care of shared property, repairs, and maintenance)
  • financial issues (for example, paying dues, how much to spend on particular items, and how to divide costs), and
  • agreements and expectations (such as conflict over what terms in the agreement mean or what each member is obligated to do).

Addressing Concerns or Conflicts Without Outside Help

The starting place for resolving any dispute should be direct communication between the people involved. If your group is small, your first step should be to sit down together and have an open, non-defensive conversation about what's going on.

Start by making sure all of you have the time and attention to devote to the conversation. Turn off cell phones and other distracting little buddies, and choose a neutral environment where you have privacy and adequate space.

Spend a few moments at the start affirming your shared commitment to resolution and to a non-defensive, open-hearted conversation. Agree not to interrupt each other, and try to use the communication techniques described in "Communication Skills for Sharing," above.

Define the problem at the outset, so everyone begins the conversation in the same place. Of course, it may turn out that the heart of the problem lies elsewhere, which will require you to expand the conversation accordingly. Make agreements if you want to, such as not to interrupt or to use a "yes, and" instead of a "yes, but" structure for responding to others.

If only some members are involved in the conflict, the others should find out what the best role for them is—helping to facilitate communication, making suggestions when it comes time for considering solutions, helping to reality-test ideas for resolution, or simply being there to show their support for the group and the members who are in conflict.

Ask someone to take notes (preferably one of those people who isn't involved in the dispute).

If an agreement is reached, write it down and make sure it meets with everyone's approval. If a discussion doesn't lead to a resolution, the next step is to look outside your sharing group for some help with the dispute.

Mediation

We believe that mediation is the method of dispute resolution best suited to sharing groups, because it can actually enhance ongoing relationships by building better communication skills and allowing everyone to have their full say. In mediation, a neutral third party (the mediator) sits down with the people in conflict and works with them, through a structured process, to reach a solution that will work for everyone.

One of the many great features of mediation is that it allows participants to discuss any topic that is important to them, including issues that couldn't be raised in a courtroom setting. You can also fashion creative solutions to your dispute, because you're not limited by what the law can provide (usually, money). In a mediation, for example, people might agree to follow a particular schedule, offer an apology for past hurtful behavior, or plan to attend an anger management or communication skills class together.

Finding a Mediator

There are lots of different types of mediators, with different skills and styles (and fees). Most cities and counties have community mediation organizations that provide mediation services at a reasonable cost. These groups rely on volunteer mediators, who usually work in panels. Some provide free services; others charge a nominal fee, such as $25 per person.

To locate a community mediation service, just look in your local phone book under "mediation" or "conflict resolution." You can also ask a small claims court clerk, the county law librarian, or even a police officer—they almost always know about mediation services because they refer neighbor disputes to mediation with some frequency.

You can also hire a private mediator to work with your sharing group. Many mediators are either therapists or lawyers, and their services will be significantly more expensive. But if your dispute is intractable, involves a significant amount of money, or threatens the very existence of your group, you might want to make the investment to hire someone with extensive training and experience.

What a Mediation Looks Like

While different mediators have different styles, and a community-based (or informal) mediation process will look somewhat different than a mediation you attend in a lawyer's or therapist's office, there are some common features and a basic process that many mediators follow.

First, the mediator will get things started by making introductions, explaining what you can expect, and setting some ground rules about things like the order in which you'll speak, how you should speak to each other (for example, no interrupting), and the time frame for the mediation.

Next, each person involved in the conflict has a chance to state the problem from that person's perspective. Often, you'll be asked to talk about only how you view the conflict, not how you think the other person sees it or what solutions you are willing to accept. The mediator may ask clarifying questions and might repeat back the gist of what you said to make sure that everyone hears and understands both sides.

After everyone has had an initial chance to speak, the mediator facilitates a discussion among you. Here's where mediators employ very different styles. Some will simply get you going and then observe the process, possibly asking questions, reframing, or offering suggestions for productive interactions. Others will structure the process more formally, having each of you speak in turn and then asking the other person to reflect back what's been said until the speaker feels the listener has fully understood. This will be the longest part of the process, when you get to the real roots of the problem.

Often, the discussion process leads very naturally to a solution that will work for everyone. Other times, you'll need to propose and discuss possible solutions to reach a compromise that's acceptable to all. Sometimes, you may need to circle back for more discussion of the conflict, and then return to problem solving. In this stage the mediator will probably be very active, working with you to craft possible solutions and then reality-testing them to be sure they're workable for everyone.

If an agreement is reached, the mediator usually writes the agreement down for you, and everyone will sign it. In some cases, you'll later need to produce a more formal, legally binding agreement.

The Mediator's Toolkit

When people are knee deep in a conflict, it can be hard to imagine how a third party could possibly move the situation forward. By being neutral and impartial in a conflict, however, mediators are uniquely situated to help people resolve disputes. Mediators use a set of communication strategies to help the people in conflict see things from each other's point of view and work together more productively toward a solution. These explanations may help if you are acting as an informal mediator for others in your sharing group and want to understand a bit about how you can move the process forward.

  • Reframing. A mediator can often "reframe" a judgment or accusation into an issue that's simply on the table for both people to solve. For example, Susan might frame a problem as Mike's fault: "Mike always leaves a mess in the kitchen." A mediator might reframe the problem as a difference in expectations: "Susan is frustrated by the situation in the kitchen. It sounds like we should discuss each of your expectations about cleanliness."
  • Creating space for discussion. Conflicts escalate when people interrupt each other and negate each other‘s statements. The mediator might ask participants to take turns speaking and possibly even to repeat back what the other has said, to ensure that everyone has a chance to be heard. A mediator can also intervene if participants become intentionally hurtful.
  • Helping everyone feel understood. Often, people in conflict will not budge until they are satisfied that the other person understands their point of view. Someone may repeat the same point, hoping that the other party will eventually "get it." A mediator can break people out of this unhelpful cycle by restating someone's point or by asking the other person to restate it. This can create instant relief for the person who is trying to be understood.
  • Seeing both sides. Because they are neutral in the conflict, mediators can often see how the same incident might have affected the participants differently, and help them communicate their different experiences to each other.
  • Getting at underlying issues. Seasoned mediators say that the "real" cause of a conflict is rarely the problem the participants are arguing about, and that the foundation of a dispute is often laid long before a particular argument arises. For example, long-time neighbors might go to mediation over a parking dispute that has escalated into hurt and anger. But underneath the disagreement about parking, there might be hurt feelings arising from the fact that the two neighbors, over the years, had gone from being friends to barely saying hello to each other. This problem was somewhat intangible until the parking dispute fanned the flames.
  • Keeping the process on track. A mediator can help participants set an agenda and stick to it. Mediators keep an eye out for unhelpful tangents, bringing everyone back to the topic at hand.
  • Maintaining optimism. Frustration levels can run high in the midst of a conflict, and participants are often tempted to just give up. Mediators can help point out where people may have already made progress, help them to identify their common ground, and so on.
  • Eliciting ideas. Sometimes, participants may become attached to a specific outcome, which prevents them from coming up with creative solutions. A mediator might be able to help develop other options to try.
  • Conferencing individually with parties. People in a dispute sometimes feel that they will lose the argument if they give even a little ground. They may even try to "hide the ball" by keeping certain facts to themselves in order to maintain a perceived advantage in a conflict. A person who can speak confidentially with a mediator might be more willing to discuss areas of potential negotiation. A mediator can work with this information, gaining insight into possible solutions that aren't yet on the table, and encouraging parties to reveal certain information if and when it makes sense.
  • Confidentiality. Mediation is confidential. Participants can feel more comfortable expressing their feelings and disclosing relevant information because they know that everyone—including the mediator—must refrain from discussing any of the mediation proceedings outside of the mediation. This extends to the courtroom, in that the mediator may not be required to testify about the mediation, nor may the participants testify about it.
  • Setting the tone. Some mediators can help resolve a dispute simply through the subtle expectations they set through their words and demeanor. Even in a room where tempers are running high, good mediators can maintain a genuine atmosphere of calm, respect, kindness, and honesty, which often become contagious.

Arbitration

Mediation has a very high success rate, and in a sharing situation where all of you are committed to the best interests of the group, it's even more likely to work. If it doesn't, however, there are other options for dispute resolution, short of going to court.

One is to hold an arbitration: an out-of-court trial with a decision maker who listens to all sides of the issue and then makes a ruling about what should happen. The decision maker could be a lawyer or even a retired judge if you wish, but you could also choose any arbitrator who's acceptable to everyone involved. The arbitrator doesn't necessarily need any special skills, only the willingness to listen with an open mind and render a decision based on principles of fairness. Neither the process nor the decision must be based on legal rules.

You could also choose a panel of arbitrators—for example, if there are two of you in conflict, you each choose an arbitrator, then the two arbitrators together choose a third person, and the panel listens to the arguments and makes a decision together. You'll make a choice at the beginning of the process as to whether your arbitration will be binding—which means the decision is final and you can't ask a court to overrule it later—or non-binding.

Arbitration is more cumbersome than mediation, because it requires you to prepare evidence and a presentation for the arbitrator to base a decision on. It also takes the decision-making power out of your hands, in contrast to mediation, where the participants make the decisions. But if you're not able to come to a compromise on your own, it can be a good solution.

Collaborative Process

There's also a process called "collaborative practice" that is catching on with lawyers and clients alike. In a collaborative process, both people retain a lawyer, and then both of the lawyers and the clients sign an agreement saying that they will work to resolve the case without going to court. If anyone does initiate court proceedings, the lawyers must withdraw from the case and the clients must find new lawyers for the court process. In the meantime, everyone agrees to have four-way meetings at which information is shared freely and solutions are considered all together.

Collaborative process is different from mediation in that there's no single mediator working as a neutral go-between. It's also different from hiring a lawyer to represent you in negotiations, because you get to be involved directly. You have an advocate in the room, but you also have the opportunity to speak for yourself. This combination can work well when communication needs to be highly structured and you need the support and expertise of a lawyer.

Using Lawyers for Conflict Resolution

If things really escalate, you may need to hire a lawyer to advise you and negotiate on your behalf. A lawyer can be a big help in negotiating if communication has broken down entirely—especially if you hire the right lawyer. Make sure you find someone who is dedicated to negotiation and settlement, not someone who wants to take every case to trial.

A lawyer can negotiate with the other person or the other person's lawyer on your behalf, while you stay out of it. This can help ease tensions and relieve you of the stress of negotiating directly, while still allowing you the final say on any resolution.

A Last Resort: Going to Court

It's rare to have a conflict that can't be resolved using any of the methods described above—and that's worth fighting out in court—but it may happen. Courts are most helpful if there is valuable property or money at stake, or if you and another party have reached an impasse due to disagreement about the terms of your contract.

For example, if you need to terminate a carsharing arrangement, and your sharing partner refuses to either give up the car or pay you for your share, you might sue your cosharer in small claims court. Every state has a small claims court of some kind, where cases within a certain dollar limit can be heard quickly and inexpensively. Each state has a different upper limit on how much a small claims case can be worth; states also have different rules about things like whether you can have a lawyer in small claims court, and what types of cases can be brought.

The small claims court judge will make a decision that is binding on everyone. For example, in the carsharing dispute described above, the judge might require that the car be sold and you split the proceeds, or that your sharing partner pay you half its value. Courts will consider any written or oral agreements between you and your cosharer. For example, you and your cosharer may have made a written carsharing agreement when you began sharing. If the court considers your agreement a valid contract, the judge must interpret and enforce it.

If your dispute is for more than the small claims court limit, you'll have to use a different court, often called a "superior" court. This will require you to follow many more rules, pay much higher filing fees, and put in a lot more time and effort. There aren't many sharing disputes that would be worth this kind of trouble or conflict, but if there's a lot of money or an important piece of property at stake, it's possible you'll need to go that route.

Want to know more about going to court? For more about small claims court, see Everybody's Guide to Small Claims Court, by Ralph Warner (Nolo). California residents can use Everybody's Guide to Small Claims Court in California, by Ralph Warner (Nolo). For disputes that are worth more than the small claims limit, you'll need to either hire a lawyer or represent yourself. For those who choose to go it alone, Represent Yourself in Court, by Paul Bergman (Nolo) explains the ins and outs of dealing with litigation. California filers can check out Win your Lawsuit: A Judge's Guide to Representing Yourself in California Superior Court, by Judge Roderic Duncan (Nolo).

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