Just Court ADR by Susan M. Yates, Jennifer Shack, Heather Scheiwe Kulp, and Jessica Glowinski.
When it comes to defining mediation, I am not a strict constructionist. As long as a mediation program operates within the ethical boundaries, such as confidentiality, neutrality and voluntariness, which are articulated in the Model Standards of Conduct for Mediators, I can agree with a wide variety of approaches.
Unfortunately, sometimes certain entities (e.g., courts, governments, schools, corporations) seem to use the word “mediation” as cover to make a process that is not really mediation appear more palatable. It is worse yet when the purpose of the program appears to be to create a set of hurdles. One of my core principles in mediation system design is that a mediation program should ease the path to resolution, not erect barriers to it.
A program being developed by the City of Concord, California, to address rising rental rates is looks like the latest example of breaking this principle. Their “mediation” program seems to be a series of barriers intended to make raising rents more than 10% in a year too much of a hassle for landlords.
Under the program, when a landlord notifies a tenant that their rent will increase more than 10% in a year, the tenant can require the landlord to participate in the “mediation” program. I don’t have a problem with this requirement. (This is one place where I part company with some in the mediation field who feel that the referral to mediation must, itself, be voluntary. I’m fine with requiring parties to attend mediation, as long as any resolution is still voluntary.) The mediator first attempts conciliation via phones calls. If that doesn’t resolve the matter, the mediator meets with the landlord and tenant in person.
If phone conciliation and mediation don’t work, i.e., resolve the issue, the “mediator” makes a nonbinding decision. This violates one of the basic tenets of mediation. Mediators are never supposed to make decisions about outcomes, whether binding or not. In this program, if the parties don’t agree to that decision, they can take the matter to a public hearing before a panel of a landlord, a tenant and a neutral party. A public hearing is pretty much the antithesis of another fundamental mediation principle: confidentiality.
From a public policy standpoint, it looks like the city is trying to accomplish a laudable goal. They have a problem with rents rising too steeply, and they want to slow that rise so that living in Concord is affordable. It seems that what they have done – with the phone conciliation, the in-person mediation, and the public hearing – is create a system that is enough of a hassle that they hope landlords will think twice about raising rents.
The problem is not only that mediators are doing things that are not mediation. Just as importantly, this program violates one of the cardinal rules of mediation program design. Mediation should never be more of a hurdle than a help.
City of Concord, go ahead and erect whatever barriers to rent increases you would like. Just please don’t dilute the valuable process of mediation by applying the label to something that doesn’t fit the name.
"Loosing confidentiality is like loosing virginity: it happens only once." (Eric Galton, Representing Clients in Mediation, American Lawyer Media, L.P. 1994) It is the author's bold submission, that Dutch case...By John Bosnak