Saturday, September 19, 2009

But I Just Want to Go to Court!

Can't the court just decide who's right and who's wrong?  Sure, but it might not be the best option:

Take this example of a criminal case referred to mediation:
Paul at the top of a mountain in rural Buncombe county.  The only way to get to his house is to use a driveway that goes through his neighbor Ed's property, and their property deeds say that that the driveway is an easement for access.  Paul and Ed are mutually responsible for upkeep, which means that a load of gravel needs to be brought in from time to time. 

Ed has been frustrated since April when Paul's daughter Eileen turned 16 and got a driver's license.  Eileen drives her new pickup at top speed up the driveway, kicking the gravel off the road.  Ed called Paul and asked him to tell Eileen to stop driving so fast.  Paul hung up.   A few days later, Ed saw Paul out in his yard and approached him.  Paul told him to get off his property.  Ed refused to leave until they could have a conversation.  Paul went inside and called the police, who issued a second degree trespass warrant against Ed.   On the first court date, the district attorney suggested that the neighbors try mediation before proceeding in court. 

Paul doesn't want mediation - Ed was on his property, didn't leave when he was asked, and the court should punish him for tresspassing.  Ed isn't sure about mediation because he is sure that the judge will see that Paul was wrong to let his daughter drive so fast, so he will be found not guilty and Paul will be proved wrong.

As it turns out, Ed and Paul agree to mediation.  During mediation, Paul shares that he and Ed used to work together at a furniture plant that had some finanical problems, and Paul was laid off while Ed wasn't.  Ed shared that he had always felt terrible about Paul losing his job, especially because Eileen was a newborn.  Ed never understood why he hadn't been laid off first.  Paul apologized to Ed and said that it was in his best interest also to ask Eileen to slow down, since he would have to pay his part of the load of gravel.  Ed apologized for not leaving Paul's property when he was asked.   They agreed to get a new load of gravel, and Paul said that he would pay 60% instead of half. 

The American Bar Association has a good list of the advantages of mediation: ABA - Advantages of Mediation.  Criminal courts aren't set up to resolve hurt feelings - it's just not what they do.  Imagine Paul and Ed's relationship for the next decade if Ed had been found guilty.

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