Although not the most pleasant task for landlords, you should always make sure that you make efforts to resolve issues with residents. If you’re unable to reach an agreement by dealing directly with a resident, you have three ways to settle the disagreement:
Litigation involves filing a claim with a court to have a judge or jury determine whether a party’s legal right(s) have been violated by the failure of the other party to honor her obligation(s) as agreed to in a legally binding contract, such as a lease.
Mediation is an opportunity for both parties to settle their differences informally with the assistance of an objective third party. Although litigation involves rights and obligations and determining who’s right and who’s wrong, the goal of mediation is to arrive at a resolution that serves the needs of both parties to their mutual satisfaction. Mediation is typically less expensive than litigation. When done successfully, everyone wins.
Arbitration is a cross between litigation and mediation. Like litigation, arbitration calls on an objective third party to determine who’s right and who’s wrong and award any damages to the injured party. Like mediation, the case is handled outside the legal system. Arbitration may be legally binding or not, depending on what the parties agree to prior to the hearing.
If the parties agree to nonbinding arbitration and one party isn’t satisfied with the ruling, she’s free to file a legal claim, seeking a resolution through litigation.
Many organizations offer both mediation and arbitration services, so if mediation doesn’t resolve the issue, you can always try arbitration. Check with your local bar association for referrals.
Identify disputes that can benefit from mediation
If you can’t resolve a dispute with a resident you want to keep, then mediation is the preferred approach, because it’s more likely (than litigation or arbitration) to lead to a long-term solution and less likely to embitter either party. Mediation is very useful for resolving civil disputes, such as those involving contracts.
If a resident’s violation of the lease terms is so egregious or persistent that you want to remove the resident, then forget about mediation. Try to get the resident to move out voluntarily and, if that isn’t an option, file a legal claim to have the resident evicted. Mediation can’t help when either party is uncooperative or at least open to the possibility of arriving at a solution.
Find a qualified mediator
If you and your resident are open to the idea having a mediator help you resolve your dispute, the next order of business is to find a qualified mediator. Start by contacting your local affiliate of the National Apartment Association (NAA), community center, or bar association.
Many cities and towns, especially the larger ones, have mediation centers that can handle most types of disputes for free or for a modest fee. You can also track down private-practice mediators (often called neutrals) through various associations or directories online, including the following:
Enter mediation with the right mindset
By the time parties enter mediation, they’re usually very emotional. Each party thinks she’s right and the other party is wrong. That’s okay. Mediators are trained to deal with emotions.
In fact, while litigation discourages participants from expressing emotion and relies solely on evidence to prove one’s case, mediation encourages participants to express their emotions, so the mediator can help the parties discover and deal with the issues that are at the root of those emotions. As many mediators point out, the real issues that must be dealt with are often hurt feelings.
Mediation is usually most effective when parties enter into it with a positive attitude and with confidence that mediation will resolve the dispute. So, try your best to be positive and willing to let the mediator do her job. Be honest about how you feel and candid in answering any questions. Only by getting everything out in the open can you hope to reach a long-term solution.