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Mediation is Not Always About Settling!

A colleague of mine- Jan Frankl Shau, Esq. recently published an article in the Los Angeles Daily Journal entitled “ A New Paradigm for Mediation: the Role of “bearing witness” (July 28, 2023). In it, she notes that sometimes the job of the mediator is simply to “bear witness” or simply to listen without judgment and without trying to use her negotiation skills to settle the case. Rather, we simply say “amen” to the story the parties tell us so that they know they have been heard and perhaps to help them reach closure.

Reading this reminded me of a recent mediation in which I was not told until the very end what was the true purpose of the mediation. It was a landlord-tenant matter in which the tenant had left the premises two months prior to the lease termination date.  Although the landlord had failed to comply with the California statutory requirement of providing an itemized list of damages within 21 days after the tenant left, the landlord still claimed a host of damages as well as rent for the remaining months on the lease (until it was able to relet the premises.)

Although the complaint was on file, the tenant had not filed an answer or any responsive pleading. Instead, they wanted to mediate. And I thought this was great as the parties could settle and not incur too much time and expense in a matter in which the alleged damages were minimal.

As the mediation proceeded, I learned that the reason the tenant left was because she occupied one of two units on the property, and the other unit was allegedly occupied by a tenant who was extremely disruptive, perhaps a bit harassing, and otherwise far from being a “good neighbor”. The tenant with her two small children simply did not feel safe. After complaining several times to the landlord to no avail, she decided to leave.

As expected, the landlord denied hearing such complaints and claimed that the tenant had another reason for leaving: she bought a house and so wanted to move in!  It slowly came out that the “other” tenant was the daughter of the landlord and that previous tenants had also complained.

As the matter progressed, counsel for the landlord ignored the fact that the landlord might well not be entitled to any of the alleged itemized damages as it did not provide timely notice and instead insisted on being paid all of the itemized damages plus the remaining rent. In response, the tenant threatened to not only file an answer but a cross-complaint as well for breach of quiet enjoyment of the premises and to drag the daughter into the litigation by calling her as a witness and engaging in discovery regarding her mental state.

After several hours, the parties were not very far apart. The parties were close enough that if they truly wanted to settle, they could have done so.  But, at that point, counsel for the tenant let me in on a secret: the only reason the tenant was mediating was because the lease required the parties to mediate in order to later claim attorneys’ fees should the tenant win in the litigation. Thus, no matter how close the demand was to the offer, the tenant’s answer would be “no deal!”

Unwittingly, I, as the mediator, was there not to use my negotiation skills, but to “bear witness” that the parties did “attempt” to mediate the matter. And perhaps to “bear witness” to the story that each side told and provide empathy, understanding and acknowledgment that what happened was “horrible”.

The lesson I learned is simple: not everyone comes to mediation to settle a case. Other motives are often at play and that is one of the first questions I should be asking: Why are you here? To settle, to comply with a court order, or for some other reason?

…. Just something to think about.


Phyllis Pollack

Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as… MORE >

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