My neighbor and I have been having a series of disputes for a long period of time. It started a couple years ago when he began parking on my land, which he claims he’s permitted to do under his homeowners' agreement. Then, a few weeks ago, he got upset when I started playing music at my first summer barbecue on my lawn and threatened to call the cops. Now his teenage kids are throwing loud parties late at night when he’s not even home. We’re both reasonable people at the end of the day (I think), and really just want to put these issues behind us so we can go on with our lives. We don’t want to pay huge fees to lawyers, and we’ve heard that a mediator or an arbitrator might be able to help. But which should we choose?
First of all, you should recognize that there’s no “right” answer to this question. Most alternative dispute resolution professionals will acknowledge that different disputes require different mechanisms to resolve them – the right tool for the right job.
For some disputes, two attorneys arguing in front of a judge might be the most effective means of achieving resolution. In other disputes, two people grabbing a beer and negotiating the terms of a deal might be better. You can think of mediation and arbitration as two steps along that continuum. In arbitration, the arbitrator will hear arguments from both you and your neighbor and, after considering these arguments, render a binding decision. That decision will (usually) be enforced by a court. In mediation, the mediator has no power to render a decision. Instead, the mediator's role is to facilitate a conversation and attempt to help you both to forge a deal.
So for your dispute, which is “better”? Again, there isn’t necessarily a right answer. If you simply want answers with respect to your rights so that there’s no confusion, an arbitrator would be able to give you this clarity relatively quickly. In other words, the arbitrator might require that your neighbor park elsewhere; that you stop playing music; and that his children can have their parties only at certain hours.
The problem with arbitration in this context is that the arbitrator is deciding fairly personal issues. Except, perhaps, for where your neighbor is permitted to park, the dispute you both face are not strictly legal in nature. A mediator would allow the two of you to talk about your underlying concerns with respect to the parties and the noise. When do you most need peace and quiet? How loud is too loud? A mediator might be able to help you compromise; for example, by suggesting certain noise and time parameters for your respective parties, or advance notice requirements.
Another possibility is that you could agree to have the dispute resolution professional “arbitrate” the property rights issue, but “mediate” the other issues. In the private, dispute resolution world, these types of mixed solutions are not uncommon. This would allow you to match the appropriate mechanism to the dispute, if that’s what you and your neighbor believe would be most effective.