As someone who has been focusing on boundary law almost exclusively for the last 5 years, I have come to understand that in a conflict there are always (proverbially speaking) “two sides to the fence.” I think this language, or perhaps “two sides to a coin” help people to more concretely understand the concept that there are “two sides to every story.”
Unfortunately, this just isn’t how we are taught to think. Consider momentarily that the world calls the messy fighting during the mid-18th century to be the Civil War. This is because victors get the spoils of war. If the Confederacy had won, the world instead would call it (as some southerners yet do) The War of Northern Agression.
Mediators are the people who are called upon to help people realize that there are two stark realities contained within a conflict … and if they are lucky they are able to help the disputants see the reality from the other side of the fence.
When this happens, both are able to recognize the fence for what it is … a duality of realities.
While some may stubornly hue to their reality after acknowledging that the other reality exists, it is no earlier than this point where people realize that the other person has a point – or in better keeping with the fence analogy: a point of view – which the mediator can use to start to explore the underlying rationales for the fence itself.
In the work of actual boundary dispute law, these are most common reasons for a fence:
- Security from the Outside
- Safety for people or animals Inside
- Privacy from Voyeurism
- Block of Blighted Property
- Noise Block Usually From Others
- Sun Block Usually as a Derivitive Effect of other rationales
- Clarity of Bounds; and finally
- Spite
That’s a rather long list of interests which I just prattled off. Once these interests are identified, then in all cases, with the exception of the last motivation of “Spite” – these interests can be managed, massaged, traded, and reworked in such a way as to find other solutions.
In law school, property rights are analogized to a bundle of sticks. Explictly this analogy is attempting to say that there are several things that one can do when they have a relationship to something – as opposed to a person.
Instead, of merely seeking to resolve technical legal issues somewhat akin to the way that surveyors can either ‘slap down the math’ or actually seek to exert their ‘Quasi Judicial Function,’ mediators can actually solve problems which go far beyond the scope that a lawyer can. [1]
And what’s just as important is that mediators can do this much more quickly, economically, and non-emotionally taxing than attorneys.
As far as I am concerned, the question of what is the BATNA (Best Alternative to Negotiated Agreement – i.e. litigation) is the wrong question.
Mediators should really get across to people that if … and that is an everpresent variable … IF one gets their day in court, what will they gain from it?
In all cases the diplomatic attempt of mediation should first be exhausted, then and only then should you consider going to court … if your pocketbook, gut, and calendar will allow you to pursue it.
Do mediation first, figure out the contours of the fence and move forward with a peaceful relationship with your neighbor if you can are able to do so. The choice is simple. Unfortunately, the mistaken choice is repeatedly made. I hope your aren’t one of those that fall victim to that mistaken choice. With Utmost Sincerity.
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See my blog post dated 2015.05.26 and titled: Surveyors Should Bring About Peace Between Neighbors where I first mention the different surveying concepts of ‘slap down the math’ as disdainful identified by Jeff Lucas, PLS, Esq. and exerting a ‘Quasi Judicial Function’ [HERE].