Why Mediation is Preferable to Litigation in Landlord Tenant Disputes Essay

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Landlord-Tenant MediationLandlord-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 MediationResearchers 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 RuleModern 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.

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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…

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…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.The preferred type of mediation in cases where the disagreement is over a matter of the landlord’s or the tenant’s responsibilities is usually going to be evaluative mediation. The preferred type of mediation in cases where the disagreement is over something subjective—such as the state of the property upon vacating it or while renting it—will likely best by addressed via facilitative or transformative mediation. The simple reason for this is that evaluative mediation focuses on the law; and facilitative/transformative mediation focus on the relationship, the interests of both parties and their particular needs. All three are, however, common sense and practical approaches to dispute resolution without recourse to the courts.ConclusionMaintaining a landlord-tenant relationship is very relevant in today’s day and age—just as it was centuries ago when Francis Pastorius acted as mediator for various groups in the New World. Reputations are at stake in any case, and one wants to be careful about how his reputation develops. For instance, the impact on a landlord’s reputation as a so-called slumlord may impact the longevity of business dealings. A tenant will also want to maintain a good reputation because if he later seeks another rental agreement, the landlord will seek out references to see if the potential tenant is trustworthy. In any event, a preapproved agreement of mediation may help the landlord-tenant relationship from the onset of the transaction. If disputes arise, the preferred mediatory model will depend upon the context of the disagreement. For legal disputes, evaluative mediation is best suited because it is objective and non-partisan. For subjective disputes, facilitative….....

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