Online Mediation Works

When I mediate Landlord/Tenant cases in court, one of the first questions I ask is: Have the two of you tried to resolve your dispute on your own, before coming to court?

More often than not, the answer to that simple question is a straight No or an eloquent silence. And when I meet each party in private session, this is a typical scenario that transpires.

Private Session with Landlord
Landlord: For four years, I was very pleased with my tenant. She always paid the rent — on time and in full. And then, suddenly, she stopped. She didn’t pay the last two months, and that’s why I filed a claim in court.

Mediator: When she started not paying the rent, did you ask her why?

Landlord: I felt uncomfortable asking her directly… she seemed so worried, busy. But I did leave two short messages on her answering machine about the back-rent, and she didn’t bother to call me back.

I hate the idea of having to find a new tenant. But what at this point can I do…

Private Session with Tenant
Mediator: According to your Landlord, for four years you were the perfect Tenant, always paying the rent on time and in full. But in the last two months something changed…

Tenant: In the last two months I have been through hell. My husband filed for divorce, and I had to spend a lot of money to hire a good attorney.

Mediator: That must have been a terrible experience… Did you let your Landlord know?

Tenant: No… I was embarrassed, ashamed. I didn’t know how he would take it, and frankly I didn’t even know whether he cared at all about my personal situation. He did leave me two messages, but they were very short, and only about his rent. He didn’t even bother to ask how I was doing – nothing.

I hate to find another place, but at this point what can I do…

What Happened Next
If Landlord and Tenant can finally talk to each other during mediation, they can usually work things out. Not only can they can negotiate a reasonable payment plan to take care of the back-rent. But they also start seeing each other in a new, better light.

Other times, though, it is just too late.

Bottom line: The more Landlord and Tenant can communicate openly, the less the risk that they end up doing something they both “hate” doing.

In Hawaii, when a landlord tenant dispute for residential property ends up in court, it is sent automatically to mediation. In other words, both parties sit down with a neutral mediator, who helps them:

• Explain their perspective
• Listen to the other party’s perspective
• Decide whether their case can be resolved with a mutually acceptable agreement

If landlord and tenant can work out an agreement, the mediator writes down whatever they have agreed on, for example about their payment plan to take care of the back rent, or the day by when the tenant will move out.

On the contrary, if landlord and tenant are unable to reach an agreement in mediation, their case is sent back to the judge, who gives them two dates: the day by when both parties have to exchange the documents that they will show to the court during the trial, and the day of the trial.

The difference between settling a case in court or through mediation is quite simple.

In court, the judge can only consider the law, as spelled out in the Landlord Tenant Handbook, and the parties’ evidence. For example, if the tenant cannot prove that s/he had a good legal reason for not paying the rent on time and in full, the judge will most likely enter a writ of summary possession effective even forthwith.

In mediation, it’s a different story. Landlord and tenant have the opportunity to clarify and talk about anything. For example, suppose that the tenant did indeed fail to pay the last two months rent on time or in full. In mediation, the tenant can at least explain why… Perhaps his/her employer suddenly went out of business… or perhaps s/he got sick and is still dealing with some huge and unexpected medical bills.

From my experience as court mediator, when landlord and tenant have known each other for some time, they can usually work things out. They can, for example, agree on a payment plan for the back rent through monthly installments. Or they can at least agree on a reasonable amount of time – say 10-20 days – by when the tenant will move out.

In short, when landlord and tenant are in mediation, they can apply the old saying “where there is a will there is a way”. When they are in court before the judge, their will just doesn’t count.