Recommendations
on neighbour
problems

Guideline for neighbour problems / RESOLVING: 4.2 Entering mediation as a first step

Interventions and evidence explained

Most plausible interventions explained

During the orientation process of the available literature, we were able to identify the following interventions for deciding in neighbour disputes:

Entering mediation
Initiating an adversarial process

Litigation is the most formal and interventionist response to neighbour conflicts. It is a process of settling a dispute in court according to legal statutes, with advocates presenting evidence on behalf of the parties. Litigation is an adversarial process, in which a judge (or jury) adjudicates in favour of one party after hearing both sides (Liebmann, p. 2).

Mediation is considered to be the least formal of the dispute resolution methods which involve a third party (Liebmann, p. 2). Mediation is a process by which parties in conflict meet with a neutral third party with the goal of reaching a mutually acceptable agreement or settlement (McEwen & Maiman, p. 238). In contrast to a judge, a mediator does not make a decision regarding the merits of the parties’ claims, and cannot impose a settlement that the parties do not agree upon (Baum, p. 933-934).

Many people mistakenly believe that going to court is the only option available to them to get what they want (Liebmann, p. 9). Because litigation seems to be the baseline response to neighbor conflicts, we test it against mediation.

Selected interventions for comparison (defined as a PICO question)

For parties to a neighbour dispute who need the support of a third party to make a decision, is entering mediation or initiating an adversarial process more effective for well-being?

Search strategy

The databases used are: HeinOnline, Westlaw, Wiley Online Library, JSTOR, Taylor & Francis, and ResearchGate.

For this PICO question, keywords used in the search strategy are: neighbour; disputes, mediation; community mediation; dispute; resolution; conflict; local; litigation.

Assessment and grading of evidence

The main sources of evidence used for this particular subject are:

Christopher Baum, The Benefits of Alternative Dispute Resolution in Common Interests Development Disputes, St. John’s Literature Review (2010)
Nathan K. DeDino, When Fences Aren’t Enough: The Use of Alternative Dispute Resolution to Resolve Disputes between Neighbors, Ohio State Journal on Dispute Resolution (2003)
Marian Liebmann, Community and Neighbour Mediation (1998)
Jim Dignan, Evaluating Community and Neighbour Mediation in Community and Neighbour Mediation (1998)
Gay Clarke & Iyla Davies, Argument for and Against the Use of the Mediation Process Particularly in Family and Neighbourhood Disputes (1991)
Raymond Albert & Dorothy Howard, Informal Dispute Resolution Through Mediation (1985)
Craig McEwen & Richard Maiman, Small Claims Mediation in Maine: An Empirical Assessment, Maine Law Review (1981)

Quality of evidence and research gap

A significant portion of the identified sources on mediation and litigation in neighbour disputes are expert opinions published in legal journals. Christopher Baum’s 2010 article explores the advantages of mediation and disadvantages of litigation in the context of common interest development disputes (disputes that arise among condominium and co-op tenants). Given that Baum is a litigator himself, his assessment of the weakness of litigation for resolving neighbour disputes appears reliable. Nathan DeDino’s 2003 law review article presents a similarly balanced argument on why mediation is particularly well-suited for resolving neighbour disputes. A 1991 article by law lecturers Gay Clarke and Iyla Davies provides an overview of the advantages and disadvantages of mediation in the field of family and neighbour disputes. While they are clearly in favor of mediation, they systematically address its potential shortcomings, and conclude that “it has not been the aim of this paper to establish mediation ‘as a panacea for all types of conflicts’” but rather to demonstrate that there is a “definite role” for mediation in the area of neighbourhood disputes (Clark & Davies, p. 94).
Dr. Marian Liebmann is an experienced mediator and restorative justice practitioner. Her 1998 book provides an in-depth account of neighbour mediation in the UK. Jim Dignan’s chapter outlines an evaluative framework for mediation in neighbor disputes, and describes the aims and approach of a 1996 Neighbour Disputes research project, which compared the cost-effectiveness of mediation and alternative measures.
Two of the sources describe the results of empirical studies. A 1985 article by Raymond Albert and Dorothy Howard discusses the results of two small observational studies, one of which measured user-satisfaction among neighbours who participated in mediation through the Neighbourhood Dispute Resolution Program in Philadelphia. It analyzed 376 cases using descriptive statistics. A 1981 article by associate professors Craig McEwen and Richard Maiman’s presents interview data gathered as part of a year-long, intensive study comparing outcomes of mediation with outcomes of small claims adjudication. Their sample included 403 cases heard by six “equivalent” courts that relied exclusively on one of the two interventions

According to our research method, we grade the evidence comparing mediation and litigation for neighbour disputes as very low. The two sources that could be regarded as low are regrettably also the oldest. This leaves a gap in recent, empirical research on the satisfaction rates associated with each intervention. The dearth of comparative impact analysis is likely due to the difficulty of collecting uniform data on neighbour mediation, and the difficulty of comparing interventions that differ fundamentally in terms of their aims, methods, approaches, and desired outcomes (Liebmann, p. 220-221). However, we find little evidence of bias or selective reporting of outcomes in the existing research. Furthermore, findings are consistent across studies: none of the international experts we identified recommend litigation over mediation for the resolution of neighbour disputes. For this reason, we upgrade the evidence to low.

Comparing the two interventions

Desirable outcomes of the interventions

Initiating an adversarial process	Entering mediation as a first step
	The mediation process is particularly satisfying and successful for those in continuing relationships (Albert & Howard, p. 101; McEwen & Maiman, p. 257). A study on small claims mediation in Maine found that eighty percent of respondents with continuing relationships who experienced it were mostly or completely satisfied with the overall process, as contrasted to 65% of those parties who had had a one-time encounter or whose relationship had terminated (McEwen & Maiman, p. 257). A later study – conducted on a Neighbourhood Dispute Resolution Program in Philadelphia which exclusively heard neighbour disputes that did not involve a weapon – found that 88% of complainants and respondents said they experienced a fair hearing, and two out of three complainants and respondents said the program staff had helped them resolve their problem (Albert & Howard, p. 105).
	Mediation facilitates mutual understanding and compromise by mitigating communication barriers related to legalistic and adversarial procedure (Baum, p. 936). It does so by taking a constructive, problem-solving approach to conflict, which focuses on identifying obstacles to successful negotiation and helping parties overcome them (Liebmann, p. 16; Dignan, p. 236).
	Mediation diminishes hatred and facilitates relational repair by providing a forum in which parties can comfortably address each other face-to-face. A mediator’s role is to hold a mediation at a place, time, and length of process which is suited to the disputants and reduces stress (Clarke & Davies; p 86) This helps parties find common ground and reach a “win-win” solution that resolves the specific problem at hand while also taking into account the parties’ future relationship (Baum, p. 936; Clarke & Davies, p. 85).
	The private and confidential nature of the mediation process encourages an uninhibited exchange of information, feelings, and emotions, which is one of the main contributors towards a mutually satisfactory settlement (Clarke & Davies, p. 86). By allowing parties to vent their frustrations and feelings, mediation may also provide parties a form of cathartic relief (Baum, p. 935).

Undesirable outcomes of the intervention

Initiating an adversarial process	Entering mediaiton as a first step
The costs of litigation may prevent parties from addressing their conflict. The cost of filing a lawsuit, missing time from work, traveling to and from the courthouse – and in more serious cases, hiring an attorney – may dissuade neighbours from bringing their dispute to court (Baum, p. 916). The prospect of high litigation expenses causes many legitimate grievances to go unresolved (Baum, p. 917).	The quality of the mediation process and its outcome depends on the experience of individual practitioners (Liebmann, p. 247; Albert & Howard, p. 105). Because mediation services are largely (though not exclusively) confined to the voluntary sector, there are no uniform standards for mediators’ education, training, or practice, and the quality of individual practitioners varies considerably (Baum, p. 940). Inexperienced or unqualified mediators can damage settlement negotiations by favoring one party over another.
The time and money that litigation requires may entrench resentment between parties. Lawsuits are costly can take several years or even a decade from start to finish (Baum, p. 918). A person who misses work, pays for an attorney, and devotes his free time to dealing with litigation will naturally come to resent the other party in the case. The more money and time spent on litigation, the more hostility that develops between the parties (Baum, p. 922). For these reasons, a legalistic approach in which sanctions are invoked is unlikely to be conducive to the reduction and resolution of conflict between neighbours (Dignan, p. 236).	The private and confidential nature of mediation may disadvantage parties that belong to discriminated groups. Some scholars argue that without public scrutiny and education, there will be no effort to reform, legislatively or socially, entrenched discrimination or power imbalances (Clarke & Davies, p. 89).
Litigation may cause relational damage. The traditional adversarial process is too focused on the individual parties and too competitive to deal successfully with disputes involving persons in closer relationships (DeDino, p. 897). Encounters between litigating parties are rare and often antagonistic (McEwen & Maiman, p. 86). A victory in court, while solving the immediate problem, can further exacerbate problems in the relationship. If the relationship is not healed, continued problems are probable (DeDino, p. 901).
Litigation may address the symptoms of a problem without addressing its cause. The litigation process does not always allow a full exploration of the factors underlying a dispute. Therefore, the problem may remain after the disputants leave the courtroom. With the high cost of litigation and the practice of lawyers to engage in time costing methods there is real pressure to “get to the point.” Often, the real issues and underlying interests remain buried (Clarke & Davies, p. 85).
Outcomes of litigation are informed by the law as opposed to the needs of the parties involved. The judicial system is limited in the relief that it can provide and in its ability to craft creative, “win-win” solutions that benefit both parties. When litigation finishes, there is always a “winner” and a “loser” (Baum, p. 920).
Litigation may generate unwanted publicity. Litigation allows fellow unit owners, friends, business associates, and others to learn details of a dispute that may be personal and potentially embarrassing (Baum, p. 920).

Balance of Outcomes

Taken together, the available research suggests that litigation entrenches opposing arguments and makes it difficult for neighbours in conflict to reach a mutually satisfactory agreement or settlement. This is particularly undesirable due to the close and continuing nature of neighbour relationships. Neighbours who encounter each other regularly are likely to have an interest in maintaining good relations and avoiding future problems (DeDino, p. 897, 901). In this communal context, the mutual understanding, catharsis, and compromise that mediation faciliates are more valuable to the parties involved than a costly, adversarial, and often unproductive victory (or loss) in court.

The desirable outcomes of mediation outweigh those of litigation, and the undesirable outcomes of litigation outweigh those of mediation. Therefore, mediation is preferred.

Recommendation

Taking into account the balance of outcomes, the effect on neighbours’ well-being, and the quality and consistency of the evidence, we make the following recommendation: For parties to a neighbour dispute who need the support of a third party to make a decision, entering mediation (at least as a first step) is more conducive to well-being than initiating an adversarial process (litigation).