A MEETING OF THE MINDS IN LANDLORD-TENANT DISPUTES BY USING THE SERVICES OF MEDIATORS

There are growing calls to compel feuding landlords and tenants to use a mediator to work through their differences. Is mediation an effective strategy? Does it help or hurt the landlord? It depends on who you ask and what the circumstances are.

On the surface, mediation seems reasonable enough. Housing providers have grievances with tenants, and some disgruntled renters complain to their landlord. We know that one or both parties can be a bull in a china shop and what we mean by that is that they cannot have a productive dialogue. The rental relationship is so acrimonious, that no amicable resolution can be reached.

This is when a neutral, third party comes in to listen to both sides and attempts to reach a mutually agreeable solution. Several cities throughout the Bay Area have favored alternative dispute-resolution processes, putting mechanisms in place for landlords and tenants to air out disputes, including:

• Habitability and repairs

• Rent increases

• Security deposit deductions

• Unlawful evictions

• Changes to tenancy agreements

• Reduction in services

• Etc.

In many cases, there is merit to engaging in mediation, but other times not.

 

“Mediation for a landlord/tenant dispute is typically not the first choice if we are focused on recovery of possession of the unit.  An unlawful detainer action is typically the best-leveraged approach to accomplish your goal.  Also, remember, as part of the unlawful detainer process there is typically a settlement conference.  At the settlement conference, you can resolve the dispute without the need to pay extra for a mediator – while also maintaining the ability to proceed with the eviction should an agreement not be reached.”

~ Daniel Bornstein

 

Some residents will get the landlord’s message with a feather. Others need the freight train of an eviction notice without coming to the negotiating table. Tenants’ advocates will call that intimidation. We call it enforcement of the covenants of the lease that the tenant agreed to.

 

This raises the question of how aggressive housing providers should be. 

We sometimes quip by saying that when you talk to two attorneys, you get three different opinions. Some attorneys are more aggressive in transitioning tenants out of the unit while others take a more tepid approach. Other attorneys are afraid of their shadows, but we invite you to hear out others to triangulate judgment.

We would be remiss not to say that some tenant behavior does not lend itself to mediation, or even an opportunity to cure the behavior. Think drug dealing, violence, prostitution, arson, and the like. When there is a real and foreseeable threat to the rental community, the offender should be evicted without haste.

 

It is submitted that mediation is less expensive than litigation. 

Perhaps. Perhaps not. It depends on how much owners pay an attorney and how long the matter will take to resolve. At Bornstein Law, we like to play a quick chess game. We don’t have the stamina to play a 3-hour chess game. Our stated goal is to resolve a dispute as quickly and inexpensively as possible, taking into account time, risk, and attorneys’ fees.

Contrast this philosophy with some other attorneys who get jazzed up by conflict and avail the opportunity to get mired in a protracted, cantankerous dispute to bill more hours.

Keep in mind that mediators do not work for free, so landlords will have to evaluate the economics of hiring a mediator for an extra charge, versus an attorney to accomplish their goals.

Once a dispute arises, we don't know how expensive it will be to resolve. It's a crapshoot. Sometimes, a thorny issue we think will be difficult to untangle becomes easy. Clients in these difficult situations will praise us for making the case so stress-free and inexpensive but in the back of our minds we sigh and say, "Man, we got lucky."

On the flip side, we encounter cases that appear at first blush to be easy to resolve, only to find out that they become difficult. There are twists and turns and what we thought would be easy ends up requiring more heavy lifting. The biggest determinant of the outcome is which attorney the tenant gets and how hard they fight.

 

Can mediation get things back on track? 

In a stressed or failed rental relationship, proponents of mediation say that an impartial mediator can get the relationship back on track, but our question is how far the train derailed. Can it get back on track? Or is the relationship incorrigible?

Call us biased or cynical. By the time a dispute reaches our desks, the landlord-tenant relationship is in serious trouble. Nobody calls our office to tell us that everything is going fine in their landlording or property management business. We only get a call when the rental relationship is crumbling or there is unacceptable, if not shocking, conduct in and around the unit.

We’ll have to gauge the seriousness of the conflict and whether it is reconcilable. If so, we want it to be enforceable and stipulate that if the tenant does not comply with the terms, there will be steps taken to remove them. Whether it is playing music loud at night, honoring a payment plan towards rent owed, refraining from harassing neighboring residents, or unauthorized alterations - the list of transgressions can go on - we want to ensure that the tenant understands that if their promises are not upheld, the matter will be escalated to the courts.

 

Let's wrap it up with some parting thoughts.

There is a place for mediation but when we manage relationships, everything is on a case-by-case basis. We have full confidence in the professionalism and neutrality of mediators who aim to strike a compromise between landlords and tenants, but housing providers need to hold tenants accountable. We know that the recidivism rate for certain behaviors like hoarding is high.

If rental property owners elect for mediation, they need to be prepared to act if this last resort fails.

We may not have a choice but to engage in mediation as locales will mandate it. Unincorporated parts of Alameda County, for example, are likely to pass a rule requiring that certain landlord-tenant disputes be aired out by a third party.

Our friends at the East Bay Rental Housing Association have put together an infrastructure for small property owners in Oakland to offer an alternative to litigation, namely the City of Oakland Mediation Services (COMS).

This is really part of a larger movement to balance the power between landlords and tenants. We've seen it in anti-harassment ordinances, the formation of tenant unions, the antipathy for large owners of properties, and many other public policies that put a target on the back of anyone who owns investment properties.

While the political rhetoric falls squarely on the side of tenants, Bornstein Law advocates for the rights of owners.