The landlord had taken a large security deposit when the couple had signed the lease. In one part of the lease the whole sum was described as a deposit. On a different page it was said to include a $700 non-refundable pet fee, the balance being the deposit. When the couple decided to split up, and not to renew the lease, the landlord returned only half of the deposit, keeping some to cover the pet damage, and $700 as the non-refundable pet fee.
The landlord only itemized $700 worth of repairs when he justified his withholding from the security deposit, but now they were all in small claims court, and he was counterclaiming for double that amount of damages.
Neither side would budge; they had been in animated conversation for what seemed like an eternity in mediation. The about to be ex-boyfriend and ex-girlfriend were getting frazzled, and each wanted this done yesterday. The timing was right, and I took them aside and asked whether they could go half way in settlement of their claim against the landlord. I could see that they wanted out, and they agreed instantly.
The landlord who had drafted the all too ambiguous lease was tougher to shift. I said that his counterclaim might look a bit inflated, and more like a second bite at the apple, given his initially low itemization of the damage. He did not have a quick answer for that. We talked over the drafting of his lease, which was all the product of his word processing. I did not blurt out that the court might construe against the drafter, but we did discuss how highly he rated his chances.
Are you feeling lucky I said, it is legalized gambling in court, and you could do a whole lot worse than taking their offer. It turned out that he was not feeling that lucky, and he settled their claim and dropped his counterclaim.
This was the parties’ agreement, and the court accepted it. Perhaps the couple left money on the table and could have done better in trial. But then again, the landlord had lots of receipts and estimates, and might have done well with his counter claim. Had either side had an attorney, it could all have come out some other way.
So many people come to mediation wanting justice. They want something fair, and they ask me what I think is fair. I’m not sure that pitching 50:50 was fair in this case, except that an even split always seems fair. What was important was that I thought it might work for these parties, on that particular day. I don’t think of proposing a resolution as a way to impose my idea of fairness or justice, I’m only trying to find something that works for the parties, and that can be hard enough.
All a mediator fishes for is something that is workable. A just result is something that you have to hear out of the mouth of a judge. Settlement has to be right for the parties, and it belongs to them alone.
What mediation gives you is control over your destiny. It gives you something that is certainly not unfair, because you have to agree to any settlement. There is that slight sense of anticlimax when it is over, because the judge has not cast thunderbolts at the other party and declared you victorious. If you have settled a case, at least you have eliminated the uncertainty of what a court might have done to you. Soon after the deal is inked you will realize that the mediator has faded into the background. In this case all the humans did go their separate ways, and only the cat and the dog missed each other.