That is one thing that concerns me. As someone said somewhere in this thread- The right answer isn't always in the middle. Especially when someone is trying to take some of your property. Would a mediator sleep easy by simply splitting the difference and giving him half of what he wants of my property?
Help! I need legal advice re: easements
- Thread starter mdbarb
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TimSullivan
Silver Member
A mediator cannot extend or modify the law of the land. They must only examine the facts and rule. They cannot take your land unless there is a legal reason that your neighbor’s claim is correct.
It is not unusual for mediators to split the difference if the dispute is not governed by law. If I had been GarretV’s builder, I would have offered the neighbor the $500 to drop dead and not waste the time. It has been my experience that such disputes are usually middle ground settlements anyway. You know you have to make both parties happy and mad.
I have been involved in several disputes that were not governed by law as yours is and most times the mediator gave something to both sides. When the dispute involved land there was no moving of boundaries. There were moving of sheds, fences and driveways but the boundaries never moved. Just make sure that you have a good survey of the property and are ready to repel any suggestion that your survey is in error.
When I was coaching, I always told my players to never give the umpires or officials a chance to make a mistake. Plan ahead in your case too. Try to anticipate what your neighbor will say and be ready with documentation to make him look the fool he is.
I am assuming that this is not binding on either party. Therefore you always have the courts to fall back on if the mediator does make a bad call. Even if it is binding on the parties you can always appeal that the mediator over stepped his authority. Without being confrontational try to give the mediator the impression that you will not except a compromise.
It is not unusual for mediators to split the difference if the dispute is not governed by law. If I had been GarretV’s builder, I would have offered the neighbor the $500 to drop dead and not waste the time. It has been my experience that such disputes are usually middle ground settlements anyway. You know you have to make both parties happy and mad.
I have been involved in several disputes that were not governed by law as yours is and most times the mediator gave something to both sides. When the dispute involved land there was no moving of boundaries. There were moving of sheds, fences and driveways but the boundaries never moved. Just make sure that you have a good survey of the property and are ready to repel any suggestion that your survey is in error.
When I was coaching, I always told my players to never give the umpires or officials a chance to make a mistake. Plan ahead in your case too. Try to anticipate what your neighbor will say and be ready with documentation to make him look the fool he is.
I am assuming that this is not binding on either party. Therefore you always have the courts to fall back on if the mediator does make a bad call. Even if it is binding on the parties you can always appeal that the mediator over stepped his authority. Without being confrontational try to give the mediator the impression that you will not except a compromise.
rmorgan
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mdbarb--
This got long-winded, so feel free to quit now, but I've done this a few times both as somebody with a beef and as a mediator and might be able to get you a little bit comfortable with the process.
I assume your lawyer has told you that mediation typically involves a setting where everybody starts out in one room, usually for a relatively short time, followed by "shuttle diplomacy" periods where the mediator goes back and forth between separated parties. The mediation discussions are privileged settlement talks. A good mediator will advise you that anything said outside the presence of the other side is confidential and will not be repeated without your permission, and will obtain permission on a point-by-point basis to shuttle an argument, offer, or response to the other side.
A few points. First, as to the nature of mediation. Its sole purpose is to try to bring parties to agreement. Mediators do not decide issues or make decisions. They bring not-very-willing buyers together with not-very-willing sellers and try to broker a deal. They may reason, argue, cajole, and if it is a bad mediator beg or bully, but they cannot decide.
Second. Mediation does not work when a dispute is completely one-sided, or when one party's expecatations or demands are unreasonable. Here, the issues are tiny in the scheme of things, but huge to you--and presumably to your neighbor. On the other hand, your neighbor does, sadly under the circumstances, have a legal right to use a portion of your property for certain things. Thus, the dispute is, IMO, not completely one-sided, meaning that your goal should be to constrain the process toward a mangeable goal, for example no lateral expansion of the roadway and no use of the land beyond the turn, as well as payment of at least a portion of your fees. This is a position which will be wholly untenable to your neighbor, but may grab the mediator's attention, as well as that of opposing counsel.
Fourth. (what hapened to third? I have no idea.) Mediators thrive on information they can deploy against the other side at strategic moments. If the mediator is not familiar with the case, make sure that your lawyer, or if necessary you, make her aware that the judge has been pounding on your adversary, and describe the scene out at the house when the judge came out for the view, as well as the recusal accusations.
Fifth. Prepare for mediation like a trial. Be ready to discuss every point of your case. Spend time with your lawyer, and make sure he knows you are taking the process seriously.
Third (there it is--I knew it was somewhere.) Bring PICTURES. 24x36 if possible; at least 11x14. Maybe one big and a bunch of little ones. But that thousand-words thing is, of course, for real.
Fifth (or whatever). Mediators are often dramatically far from prescient. I had a mediator in San Francisco try to bully our team into a $14MM settlement a few years ago on a case against Boeing that settled for $61MM. Don't be afraid to walk away if the mediator is full of it: Just be sure that before you do so, you have carefully considered her points and that disagreement is principled, rather than visceral. On the other hand, it is dramatically better to have your opponent, rather than you, declare an impasse.
Don't be afraid to compromise, so long as the compromise is legitimate. That is, don't take a deal just because it's there, but don't be self-righteous. Remember, once again, that sad but true, you have to live next door to this character indefinitely.
Don't be afraid to suggest outlandish possibilities. Maybe your neighbor wants to sell his land; if you are interested, maybe your list of options should including suggesting a buyout. Brainstorm before you go in to see if there's anything that might float all boats.
Be open to the possibility, however incredibly remote, that you might be able to craft a win-win solution. Remember that, sad but true, you have to live next door to this character indefinitely. At a minimum, I would do my best to signal to the mediator that while you have been severely abused in this situation, you are willing to try a fresh start; again, let (make) your opponent be the heavy.
Finally. DO NOT agree to anything just to be done with it. Neighbor disputes have to either have stakes driven through their hearts or comprehensive agreements worked out. It sounds to me like you are on the road to the former, but are open to the latter if possible. Do not confuse resolution with surrender.
I always go into a mediation assuming that there will be two benefits. The first is that I will learn something about what the other side is thinking. The second is that I will learn what a neutral third party thinks about the situation. I am always open to the possibility of settlement, but I always assume that it will not occur.
Good luck!!
This got long-winded, so feel free to quit now, but I've done this a few times both as somebody with a beef and as a mediator and might be able to get you a little bit comfortable with the process.
I assume your lawyer has told you that mediation typically involves a setting where everybody starts out in one room, usually for a relatively short time, followed by "shuttle diplomacy" periods where the mediator goes back and forth between separated parties. The mediation discussions are privileged settlement talks. A good mediator will advise you that anything said outside the presence of the other side is confidential and will not be repeated without your permission, and will obtain permission on a point-by-point basis to shuttle an argument, offer, or response to the other side.
A few points. First, as to the nature of mediation. Its sole purpose is to try to bring parties to agreement. Mediators do not decide issues or make decisions. They bring not-very-willing buyers together with not-very-willing sellers and try to broker a deal. They may reason, argue, cajole, and if it is a bad mediator beg or bully, but they cannot decide.
Second. Mediation does not work when a dispute is completely one-sided, or when one party's expecatations or demands are unreasonable. Here, the issues are tiny in the scheme of things, but huge to you--and presumably to your neighbor. On the other hand, your neighbor does, sadly under the circumstances, have a legal right to use a portion of your property for certain things. Thus, the dispute is, IMO, not completely one-sided, meaning that your goal should be to constrain the process toward a mangeable goal, for example no lateral expansion of the roadway and no use of the land beyond the turn, as well as payment of at least a portion of your fees. This is a position which will be wholly untenable to your neighbor, but may grab the mediator's attention, as well as that of opposing counsel.
Fourth. (what hapened to third? I have no idea.) Mediators thrive on information they can deploy against the other side at strategic moments. If the mediator is not familiar with the case, make sure that your lawyer, or if necessary you, make her aware that the judge has been pounding on your adversary, and describe the scene out at the house when the judge came out for the view, as well as the recusal accusations.
Fifth. Prepare for mediation like a trial. Be ready to discuss every point of your case. Spend time with your lawyer, and make sure he knows you are taking the process seriously.
Third (there it is--I knew it was somewhere.) Bring PICTURES. 24x36 if possible; at least 11x14. Maybe one big and a bunch of little ones. But that thousand-words thing is, of course, for real.
Fifth (or whatever). Mediators are often dramatically far from prescient. I had a mediator in San Francisco try to bully our team into a $14MM settlement a few years ago on a case against Boeing that settled for $61MM. Don't be afraid to walk away if the mediator is full of it: Just be sure that before you do so, you have carefully considered her points and that disagreement is principled, rather than visceral. On the other hand, it is dramatically better to have your opponent, rather than you, declare an impasse.
Don't be afraid to compromise, so long as the compromise is legitimate. That is, don't take a deal just because it's there, but don't be self-righteous. Remember, once again, that sad but true, you have to live next door to this character indefinitely.
Don't be afraid to suggest outlandish possibilities. Maybe your neighbor wants to sell his land; if you are interested, maybe your list of options should including suggesting a buyout. Brainstorm before you go in to see if there's anything that might float all boats.
Be open to the possibility, however incredibly remote, that you might be able to craft a win-win solution. Remember that, sad but true, you have to live next door to this character indefinitely. At a minimum, I would do my best to signal to the mediator that while you have been severely abused in this situation, you are willing to try a fresh start; again, let (make) your opponent be the heavy.
Finally. DO NOT agree to anything just to be done with it. Neighbor disputes have to either have stakes driven through their hearts or comprehensive agreements worked out. It sounds to me like you are on the road to the former, but are open to the latter if possible. Do not confuse resolution with surrender.
I always go into a mediation assuming that there will be two benefits. The first is that I will learn something about what the other side is thinking. The second is that I will learn what a neutral third party thinks about the situation. I am always open to the possibility of settlement, but I always assume that it will not occur.
Good luck!!
dmccarty
Super Star Member
rmorgan,
You provided a heck of a lot of info to mdbarb but its real
helpful for me. I have had a couple of issues with an old
neighbor of my rural property and I'm having an ongoing
set of problems with my neighbors in the city. Had the POlice
out this morning to ticket one of their cars. But I don't think
that will be the end of the situation. We have tried to be
nice. That did not work. As my mom in law would say I
showed them my a.... one morning after working for 28 hours.
That did not work.
So now we have the POlice involved. I don't think that will
work so the city is going to get involved over ordinance
issues.....
Its really sad since all they have to do is one simple thing....
Dont park in front of my mailbox and driveway. They block
access to both but they don't seem to get it..... How simple.
But I have learned that people can be just real stupid and
often real rude at the same time. And as I get older I have
no patience for rudeness and stupidity anymore.....
So its war if that is what it takes. And as you say, you must
drive a stake in the heart of the problem. Its just so sad that
one had to go into this mode over very simple things....
Thanks for the info,
Dan McCarty
You provided a heck of a lot of info to mdbarb but its real
helpful for me. I have had a couple of issues with an old
neighbor of my rural property and I'm having an ongoing
set of problems with my neighbors in the city. Had the POlice
out this morning to ticket one of their cars. But I don't think
that will be the end of the situation. We have tried to be
nice. That did not work. As my mom in law would say I
showed them my a.... one morning after working for 28 hours.
That did not work.
So now we have the POlice involved. I don't think that will
work so the city is going to get involved over ordinance
issues.....
Its really sad since all they have to do is one simple thing....
Dont park in front of my mailbox and driveway. They block
access to both but they don't seem to get it..... How simple.
But I have learned that people can be just real stupid and
often real rude at the same time. And as I get older I have
no patience for rudeness and stupidity anymore.....
So its war if that is what it takes. And as you say, you must
drive a stake in the heart of the problem. Its just so sad that
one had to go into this mode over very simple things....
Thanks for the info,
Dan McCarty
skent
Platinum Member
I'm always amazed at the thought process (or lack there of) of some people. I have been involved (sucked into) a disruptive neighbor's way of life too. It's unbelievable how some people can just be so simple minded and pushy. Back in the 50's my grandmother went through a court battle that lasted years and cost her thousands of dollars in legal fees. She was in the right and ended up with thousands in debt. It looks like I'll be going through the same thing or else move. I have a (new) neighbor that continually parks construction equipment and vehicles in places that block my access to my driveway and has the "I couldn't care at all about you" attitude.
His 13 year old kid walks around their 250' X 250' lot with a .22 rifle shooting at birds and trees (and occasionally my house). State police say there is no law against it as long as he points in a safe direction. (My word against his). I've been told that until I can recover a bullet (from a house or body) to do testing there is nothing I can do. Found two holes in my pole barn near the roofline, the size of a .22, one going in and one going out. Direction of travel was from the kid. Same 13 year old kid rides dirt bike on our property when we are away (tire tracks across front yard) and he denied it. POlice says I need proof (picture). Neighbor on the other side of idiot has same beefs. Still, all we can do is deal with it or move. Only possible good points would be (1) Idiot has built a very expensive house, will most likely help increase the resale value of mine (if i decide to move) or (2) kid will be 16 in three years and will be given a car to get him on the road and off my lawn.
I guess I'm gunna have to look for someplace even further out in the middle of nowhere!
Neil - is there room in Oz for another Kubota????
His 13 year old kid walks around their 250' X 250' lot with a .22 rifle shooting at birds and trees (and occasionally my house). State police say there is no law against it as long as he points in a safe direction. (My word against his). I've been told that until I can recover a bullet (from a house or body) to do testing there is nothing I can do. Found two holes in my pole barn near the roofline, the size of a .22, one going in and one going out. Direction of travel was from the kid. Same 13 year old kid rides dirt bike on our property when we are away (tire tracks across front yard) and he denied it. POlice says I need proof (picture). Neighbor on the other side of idiot has same beefs. Still, all we can do is deal with it or move. Only possible good points would be (1) Idiot has built a very expensive house, will most likely help increase the resale value of mine (if i decide to move) or (2) kid will be 16 in three years and will be given a car to get him on the road and off my lawn.
I guess I'm gunna have to look for someplace even further out in the middle of nowhere!
Neil - is there room in Oz for another Kubota????
Gary_in_Indiana
Elite Member
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I just went through an unsuccessful mediation with an excellent mediator. Essentially what happened was we were all together and took instructions and presented our 'sides' then each went to separate rooms. The mediator then went back and forth listening to what each side had in it's arsenal and tried to convince the other side (without telling what he'd learned) to move toward an agreement. In our case we were just too far apart so a trial looks to be in my future.
Really sorry to hear that. When I think of how much was spent just having lawyers write letters back and forth - I can't imagine the cost of expert witnesses, jury selection etc.
If they would just have the losing party pay for everything I bet things would get settled alot sooner
If they would just have the losing party pay for everything I bet things would get settled alot sooner
dmccarty
Super Star Member
skent,
At least I can have the city work with us to adjust our
neighbors behaviour. The POlice did come out twice
yesterday and the parked car got a ticked for blocking a mail
box. But they can only do this from 9-5 Mon to Sat. There
is another part of the ordinance that might work 24-7 but
we shall see what happens.
I've got the name of one of the code enforcers and I'll have
a chat with him about some other issues with our neighbors...
I must say that the officer that my wife talked with was very
professional and a code guy we are talking with concerning
installing a wood burning stove was also excellent. There are
idiots out there but there are good people as well.
Later,
Dan
At least I can have the city work with us to adjust our
neighbors behaviour. The POlice did come out twice
yesterday and the parked car got a ticked for blocking a mail
box. But they can only do this from 9-5 Mon to Sat. There
is another part of the ordinance that might work 24-7 but
we shall see what happens.
I've got the name of one of the code enforcers and I'll have
a chat with him about some other issues with our neighbors...
I must say that the officer that my wife talked with was very
professional and a code guy we are talking with concerning
installing a wood burning stove was also excellent. There are
idiots out there but there are good people as well.
Later,
Dan
