Paula L. Fleming
The dog next door barks 24/7. Or the Joneses’ sickly cat thinks your garden is her litter box. Before you find yourself in an all-out war, mediation may be a way to keep the peace.
You’ve tried educating your neighbors, but they didn’t take kindly to your “nosiness.” Now what? You could call animal control/law enforcement, but you suspect a formal complaint might create lasting bad feelings, or even cause harm to the animal. Why not try mediation?
Commonly used in settling family and landlord/tenant disputes, mediation can resolve animal-related issues in the animal’s favor. In the realm of animal disputes, mediators most often deal with barking dog problems, but they also work with situations involving menacing animals (in which no bite has occurred), unsightly/odorous animal waste and custody disputes over who gets an animal after a relationship breaks up.
An effective mediator assumes a neutral role, thereby creating an environment of calm and trust in which the human parties can try to reach a common understanding of what will work for them—and what’s best for the animal. People typically enter mediation in one of three ways: (1) One party has taken the other to court, and the judge or district attorney recommends they try mediation; (2) one party has complained to the police or other authorities, and they have referred the disputants to mediation; or (3) one or both parties, before involving law enforcement, seek mediation to help resolve their dispute.
Litigate or Mediate?
“It’s always better to avoid litigation if you can,” says Manhattan attorney Jane Hoffman, who is a founding member of the Association of the Bar of the City of New York’s Committee on Legal Issues Pertaining to Animals. “The U.S. legal system is adversarial—there are winners and losers. [Mediation] is a way to get what you want by going back and forth. A skilled negotiator finds the parties’ shared interests.”
Also, she continues, “Negotiators can take into account factors other than the law. Often courts do not have a lot of discretion.” For example, mediation isn’t limited by the rules of evidence the way a court is, so sometimes the nuances of a situation can be put on the table in mediation but not in court. Because of the emotional reactions that people have toward animals, Hoffman explains, being able to discuss the situation freely is often helpful in finding a solution.
If you and your neighbor agree to mediation, you will arrange to meet at a neutral location, such as a library or community center. The mediator will set out some ground rules for the discussion. Commonly, either party may leave at any time; there is no interrupting one another or lying; and the details of the mediation must remain confidential. In addition, you can propose other ground rules, such as “no swearing” or “no shouting.”
Then the mediator will help you each articulate your wants and needs. She will ask you questions to pinpoint your highest priorities—that is, what you absolutely must have to make the situation tolerable. For example: “I need quiet between 10 P.M. and 6 A.M.” or “I need to know that your cat is safe and healthy.” Mediator Lori LeCount of Saint Paul, MN, says, “Try not to see [these statements] as a personal attack.” The mediator will diffuse defensive responses and try to get the parties to really listen to each other.
The mediator will then prompt you both to propose solutions. Ideally, the discussion becomes a brainstorming session focused on finding answers instead of placing blame. The solution may be very detailed and specific. For example, in a mediation involving a couple who were “very attached” to their barking dogs, Greg Backlund, a mediator in Minneapolis, MN, helped the parties with “a detailed negotiation of schedules,” so that the dogs would be indoors when the neighbors needed quiet. Also, you may agree to share the cost, in money or time, of some solutions, such as paying to have an animal neutered or a fence built, or offering to take in an animal when his owners are out of town. Sometimes an apology is part of the agreement.
The mediator won’t take sides or solve the problem for you. However, he will help you and your neighbor work together to find some rules you can live by. The focus throughout will be on the future, not on digging through past hurts. Finally, you will usually put your agreement in writing and sign it. The agreement often will stipulate how you will communicate with each other in the future if you continue to have problems. If mediation doesn’t work out, it does not take away your right to pursue the problem through any other means.
Mediation often works well when the problem is a lack of communication. In one case, “Ray” of Twin Cities, MN, had called the police, animal control, city zoning, his city council member and the mayor’s office to complain about his neighbor’s barking dog. However, Ray had never tried to talk to his neighbor about the problem. He assumed the neighbor didn’t care and wouldn’t respond. In mediation, the neighbor learned for the first time that his dog barked loudly all night—he himself was deaf and had no idea. He immediately agreed to kennel the dog inside, and Ray apologized for not talking to him first. Mediation provided a structure for the two parties to communicate with each other.
According to Moore, “Even the rudest, most antisocial people can learn to state problems and solutions in a constructive manner.” However, nice people can be part of the problem, too. Moore says that often neighbors think that they have complained, only to discover in mediation that they had voiced their concerns in such a roundabout manner that the pet owner didn’t realize there was a problem.
Mediation also works well as a proactive approach. In one instance, “Layla” moved into a Twin Cities, MN, neighborhood with her female pit bull and a new litter of puppies. Word spread: People were ready to do almost anything to drive out Layla and protect their children from her pack of dogs. Before hysteria could turn into violence, however, the block leader contacted a community mediator. They held a block meeting and encouraged everyone to come—including the puppies. After Layla’s neighbors had a chance to play with the dogs, the group had a calm discussion and developed a contingency plan, just in case her animals ever bothered anyone.
If you are concerned about how someone is treating an animal, Michele Gullickson Moore, executive director of the Minneapolis (MN) Mediation Program, suggests, “Try to talk to the person first,” but you can also seek mediation. One case that Moore’s group handled involved a neighbor’s cat who lived outside and begged for food every day at the concerned individual’s door. This issue was resolved successfully through mediation.
Another case had to do with a dog who was left outside all the time, even through Minnesota winters. But in this situation, the animal was confiscated by animal control as a cruelty case before mediation got started. Other situations that are not suitable for mediation include: (1) the presence of illegal activity, such as puppy mill breeding, the importation of wild birds or a dog-fighting ring; (2) a conflict of lifestyle or values (i.e., you’re a vegetarian and your neighbor regularly hosts backyard pig roasts); (3) one or both parties have been violent or fears violence against themselves, their animals or their property.
Sometimes mediation simply does not work. “Joan” had lived in her home in Southern California for 17 years, when new neighbors moved in next door. The two homes are very close together. For the next 15 years, the neighbors’ animals posed a continuous series of problems.
The neighbors have kept their various dogs outside, and when they’re not home, the dogs bark incessantly, sometimes into the early morning hours. Also, some of their dogs menace Joan whenever she tries to enjoy her backyard or take out the garbage; the dogs growl, bare their teeth and lunge aggressively at the fence, sometimes nearly leaping over it.
When talks with the neighbors and police visits didn’t help, the police referred the parties to mediation. Both parties stated their needs (Joan wanted quiet; the neighbors wanted to keep their dogs), and solutions were proposed and agreed to. Afterwards, however, nothing changed. Years later, the District Attorney referred them to mediation again, and again nothing changed.
During the sessions, there were signs that mediation wasn’t resolving anything. Of Joan’s neighbors, the wife was the dogs’ primary caretaker, yet she refused to attend the sessions. In mediation, only people who are present can agree to solutions, so it’s critical to get the right people in the room. Neither, says Backlund, should the parties “bring people who aren’t involved.”
Both parties had invested considerable time and energy in documenting their points of view. The discussion kept coming back to one side or the other presenting evidence to prove they were right. Mediation, however, is about finding a solution everyone can live with. Backlund says, “[Mediators] don’t care what kind of documentation you bring—we won’t make any judgments.”
Not surprisingly, given how committed the parties were to validating their own positions, they weren’t really listening to each other. The neighbor rolled his eyes when Joan described how upset she was. Joan’s proposed solutions didn’t always take into account the profound emotional attachment the neighbors felt toward their dogs. “Statements that describe what the other party—“you”—should do (e.g., “You need to get a life, lady!” or “You should debark your dogs!”) are unproductive.
Mediation should focus on getting the participants to make “I” statements that signal taking personal responsibility for one’s feelings and understanding of the other person’s feelings. Examples include: “I love my dogs like my children, but I understand that they’re driving you nuts” and “I know you work long hours, but I need to know your dog always has water to drink.” Skilled mediators are aware of these common pitfalls and won’t smooth them over with solutions to which the parties haven’t really committed. While mediation does not work for everyone, when it does work, it’s quicker and less expensive than litigation, and participants have more control over the outcome.
According to Moore, mediation is unlikely to work if the dispute has festered for five or more years. After so much time, the issue is weighted with a lot of history that’s hard to sort out. She says, “The problem probably lies deeper than a noisy dog or smelly kennel.” Moore stresses that she decides what is and isn’t appropriate for mediation “on a case-by-case basis.”
Mediation strikes that middle ground between forcing personal values on others on the one hand and taking measures to bring in law enforcement on the other. This approach works best to resolve issues of liveability and environment. If you or someone you know has a problem with a neighbors’ pet, or vice versa, mediation might be the path to take for an outcome that’s positive for all involved—including the animals.
Paula L. Fleming is a freelance writer based in Minneapolis, MN.
Selecting a Masterful Mediator
Many community mediators are volunteers and do not have law degrees or other formal credentials. However, according to the National Association for Community Mediation, based in Washington, DC, mediators should have taken a course in basic mediation skills, gone through an apprenticeship where their skills were coached and continue to receive regular evaluation. In addition, many states have established standards for mediators.
Don’t be shy about asking your mediator what training and experience he has, whether he meets state guidelines and if he has dealt with neighborhood disputes before. A good mediator will be happy to answer your questions. Veteran mediator Lori LeCount adds, “In addition to checking formal qualifications, make it clear how much emotion is involved and judge how comfortable the mediator seems to be about handling it.”
Also, if you feel uncomfortable with a mediator, don’t hesitate to ask for another one. Mediator Greg Backlund says that a good mediator for animal-related disputes will show “no animal bias” one way or the other.
For More Information
To learn more about the negotiation process, Manhattan attorney Jane Hoffman recommends Getting to Yes: Negotiating Agreement Without Giving In, 2nd edition, by Roger Fisher, William Ury and Bruce Patton (Penguin USA, 1991).
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