Case Study on "Common Driveway Case"

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[EXCERPT] . . . .

Driveway Case

Disputes can cause serious stress and even violence if they are not dealt with in a thorough and professional way. When the dispute is between neighbors, the stakes are always high because a condition of neighborhood peace and cooperation is vital in terms of the dynamics of healthy, happy daily living. The thrust of this paper revolves around appropriate dispute resolution (ADR), when it is needed, how it would help the Wilson family resolve their parking dispute, how it is administered, what the mediator needs to do, and what forms of ADR are available to people when a serious dispute arises.

What are the most effective dispute resolution processes?

Before going into the specific case involving the Wilson and Green families, a brief review of ADRs is appropriate. The American Bar Association publishes in-depth articles on many aspects of law along solutions to problems that are technically legal in nature but can be implemented by lay people prior to any serious legal action or litigation is necessary. In the guide, "What You Need to Know about Dispute Resolution" the ABA points to dispute resolution as a way to resolve family, neighborhood, business, housing, employment, personal injury and environmental disputes while avoiding "traditional legal" processes (ABA, 2006). In fact when neighbors (in this particular case it is about neighbors) participate peacefully and thoughtfully in a dispute resolution process they have "more control" over the outcome of the dispute than if they had hired lawyers and gone to court, the ABA asserts.

There are many different types of dispute resolution processes. The most viable and

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practical processes include the following: a) arbitration (both parties make their case; there are no federal or state rules; in "binding arbitration" the arbitrator has the authority to make a final decision); b) case evaluation (an advisor evaluates the "strengths and weaknesses of their respective positions" and makes a judgment as to how the case might play out in court; the parties may use this analysis to help reach a resolution); c) mediation (a neutral third party is called in to discuss the problem with both parties; the mediator does not have the power to enforce a decision, but he or she can help the parties avoid litigation); and d) facilitation (a trained individual helps two parties or groups to "define and analyze issues" and to reach consensus on the best outcome possible (ABA). The ABA also mentions these resolution processes: "early neutral evaluation"; "family group conference"; "pro tem trial"; "ombuds"; "summary jury trial"; "special master" and "private judging" (ABA).

Is the dispute between the Wilson and Green families at an impasse?

The dialogue presented with this assignment indicates there may be an impasse because the conversation is turning into an argument. When Green says "I need to talk to my wife and our lawyer," that is a threatening statement that sounds very confrontational rather than cooperative or conciliatory (even though the Green family is in the wrong). The reader doesn't know any more than what is presented but it certainly appears to be leading to a confrontation between the two. It is not important that the phone call from Mr. Wilson to Mr. Green on a holiday, although that may have added somewhat to the emerging tension. There may also be some tension from the Wilson family point-of-view because they obviously got along well with the previous neighbors, the Vroomans, and enjoyed the friendship therein. Indeed the fact that the Vroomans both died in the past year had to touch the hearts of the Wilson family. Also, the fact that both the Vroomans and Wilsons had teenage drivers (with cars) and yet never had any situations where the driveway was blocked certainly led to some addition tensions.

Initially a reader wonders why the Green family can't simply instruct their teenage drivers as to where to park so they won't inconvenience neighbors. This is common sense, this is common courtesy and notwithstanding adolescents' tendency to not see the big picture, it should not be difficult for the Green family to show some neighborliness in cooperating with the Wilson family. Perhaps this issue really emerged because of poor parenting, but the Wilsons aren't asking the Greens to go to counseling to learn how to raise their teenagers, they just want to be able to get in and out of the driveway as they always have. After all the Wilson family has been in their present residence for thirty years.

According to the text by Carrell and Heavrin (Negotiating Essentials: Theory, Skills, and Practices) an impasse between the two is definitely forthcoming when there is no "zone of possible agreement" (ZOPA), and at this point that appears to be the case (Chapter 7, PPT 8). Although an alert reader can clearly see there could easily be an agreement, there as yet is none and hence the potential impasse. Carrell also explains that "entrenchment" by both parties or either party could create an impasse albeit there is no evidence as yet that would lead a reader to believe both sides are entrenched.

If the Greens and Wilsons reach an impasse, which is the better route to a solution, arbitration or mediation?

Both of the above-mentioned ADR solutions cost less than litigation, and make more sense when it is merely a case of neighbors in a non-violent disagreement. Arbitration has its positive aspects, but this paper is putting forth the idea that mediation would be far better for the Greens and Wilsons. There is "confidentiality" in mediation, Carrell explains (PPT 7-9); the parties can choose a knowledgeable third party that they can agree upon; and as Carrell points out, the parties can avoid a "disastrous decision" simply because mediation prevents either party from "losing…because the parties develop the final decision" (7-9). Carrell writes that assuming both parties agree to mediation, that they should follow the Rules of the Mediation Institute of the Stockholm Chamber of Commerce. The mediation process should be used by the Greens and Wilsons because it is a proven and practical solution with three key elements: a) it is a "private, confidential process"; b) a "neutral" third party will do the research using mediation techniques; and c) mediation involves "facilitation of a mutually acceptable resolution" (Carrell, 7-11).

All that having been said, Carrell also points out that the mediator rarely has the authority to enforce an agreement like an arbitrator would have. Still, the mediator in this matter will sit down with the Greens and Wilsons and explain his or her role, will schedule private meetings, and an agreement as to fees and ground rules will be forged and set in writing (in a formal retainer) so there can be no confusion or argument as to what was agreed upon. The mediator will listen to both sides and take copious notes; the mediator will list the issues that each side has presented to him or her.

"Collaborative mediation" is when both sides sit in on a session so they can hear first hand the position the other side is presenting; "Evaluative mediation" sets the stage a bit differently, as both sides outline their issues with the mediator in private sessions and the mediator points out to each side the strengths and weaknesses of their respective positions; and "Directive mediation" is a strategy in which the mediator allows "parties to only speak to him or her" so he/she "feels their passion" over the issue (Carrell, 7-15). In the end, the settlement is up to the Green and Wilson families; the mediator can only work to bring them to a point of understanding and compromise.

Attorney John Settle has advice for those acting as mediators; he suggests that the mediator should "avoid becoming part of the problem… It's their dispute, and your job is to help them negotiate and communicate, not develop a solution for them" (Settle, 2003, p. 2). And if there is a dearth of good ideas, the mediator can lead the parties in "brainstorming" new and better ideas in a room by writing positions (as laid out by the parties) on an easel or blackboard; this adds a psychological aspect and helps both sides and the mediator to zero in on new ideas and positions (Settle, p. 3).

Other hybrid forms of ADR that may be useful in this case

Mediation-Arbitration (Med-Arb) is a two-stage dispute resolution process that begins with mediation, much in the same context as this paper has identified mediation processes on previous pages. But, when there is no deal reached through traditional mediation the person that was used as a mediator becomes an arbitrator. Vivian Ramsey (et al.) explains that one of the most obvious advantages of Med-Arb is that when no agreement is reached through mediation, the neutral third party who then becomes the arbitrator "…is familiar with the subject of the dispute, and therefore there is a saving in costs" by not having to start the process over with a new neutral third party (Ramsey, et al.,… READ MORE

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Quoted Instructions for "Common Driveway Case" Assignment:

“

CASE STUDY--The Common Driveway

For more than 30 years ***** and Shari Wilson Lived and raised a family in their dream housethat they purchased shortly after their marriage. Now in their retirement years, the Wilsons have encountered an unexpected problem--their new neighbors. Until six months ago the Wilsons*****' best friends, Edna and Hazen Vrooman, lived next door in a house they built shortly after the Wilsons moved into their home. Because the two lots were small, the Vroomans and Wilson agreed to have a shared concrete driveway poured the year they both built detached garages in their back-yards. The two families never had a problem sharing the driveway even during the years when their children became teenage drivers and both houses had more than two cars. Everyone parked in the back, inside or near the garage, or else on the street, thus leaving the driveway open for entering or leaving either garage.

Last year, both of the Vroomans died and their housewas sold to a younger couple, George and Amber Green. The Green have three teenage children, all of whom have cars. On several occassions since the Greens moved in, one or another member of the Green family has left a car parked in the shared driveway, thus blocking it from use by the Wilsons. On Memorial Day the driveway was again blocked, causing Mr. Wilson to call Mr. Green, and the following conversation took place

Mr. Wilson: Mr. Green, one of your cars is blocking the driveway again, and we need to leave.

Mr. Green: Sorry, I will find out which one it is and move it.

Mr. Wilson: Thanks, but this problem seems to occur every day, can we meet to discuss how to resolve it?

Mr. Green: Sure, I will be right over.

Mr. Wilson : We want to be good neighbors, but we should be able to get in and out of our garage without waiting for you to move a car.

Mr. Green: I understand. I tell the kids to park on the street or in the back, but you know how kids are these days.

Mrs. Wilson: Well, when our kids and the Vrooman kids were young and drove cars, we never had this problem--they knew not to park in the driveway.

Mr. Green: Maybe we could look into widening it?

Mr. Wilson: That would be expensive! It is so long, and we live on Social Security and just do not have the money for something like that, or for trimming the trees.

Mr. Green: Well, we are not getting anywhere today. I need to talk with my wife and our lawyer. :

TEXT BOOK: NEGOTIATING ESSENTIALS: THEORY, SKILLS, AND PRACTICES/MICHAEL R. CARRELL AND CHRISTINA HEAVRIN, 2008. CHAP, 7, PAGE# 188-189.

SUBMIT A FIVE-PAGE PAPER ADDRESSING THE FOLLOWING CRITERIA.

EXPLAINING WHETHER THE DISPUTE IS AN IMPASSE OR NOT AND IF ANY PARTY IS EXPERIENCING ANY SETTLEMENT PRESSURES.

DISCUSS IF THE DISPUTE BETWEEN THE WILSONS AND THE GREENS REACHES AN IMPASSE, SHOULD THEY CONSIDER ARBITRATION OR MEDIATION IN ORDER TO RESOLVE THEIR DIFFERENCES AND WHY?

DISCUSS ANY OTHER HYBRID FORMS OF ADR THAT ARE AVAILABLE AND SHOULD BE CONSIDERED IF NEGOTIATIONS FAIL TO PRODUCE A SETTLEMENT.

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