The Role of Law in Mediation

by Shawn Jang

Who is a better mediator? A young lawyer or a grey-haired, non-lawyer community leader? This is one of the constantly debated issues in the dispute resolution field. Some argue that legal knowledge is an essential armor that an efficient mediator must be equipped with. Others say that the communication and facilitation skills and personality are more important. My response has been somewhat in the middle of those arguments. I graduated from a law college in Korea but do not identify as a lawyer. I have been a professional mediator and have relevant trainings and knowledge for that. From my experience, my answer is that it depends.

I facilitated a landlord-tenant case some time ago that is a good example of this. Hannah (tenant, Filipino) and Daniel (landlord, Korean) agreed on an apartment contract with Hannah paying $1,800 for the security deposit. Hannah’s lease was supposed to start in 40 days. Twelve days later, however, Hannah told Daniel that she was canceling the contract. Hannah demanded the whole security deposit back, but Daniel refused saying Hannah’s cancellation caused him to pay for a brokerage fee ($1,000) to find another tenant plus additional costs like reducing the security deposit for the new tenant for moving immediately. Take note that there was no penalty clause for cancellations before moving in stated in the contract.

Daniel, the landlord, knew the relevant law and court procedures really well, because he dealt with difficult tenants all the time. He held fast to the letter of the law and challenged Hannah’s claim to the security deposit. He felt justified and motivated to keep the money given the expenses he was incurring due to Hannah’s last minute change of mind. Hannah, on the other hand, felt that because she had not even moved in yet, there were no reasons for the security deposit to be kept at all. She had done no damage to the apartment, and her lease still had not technically started. I looked at the California law on landlord-tenant regulation, and I also looked up the Contracts case book for breaching the contract in Common Law. I found that under the California code, the landlord should use the security deposit only for back rent fee or the repairs. It seemed at this point that Daniel should give the security deposit back to Hannah. But, as Hannah breached the agreement by cancelling it without defense or justification (it seemed she just changed her mind), there was room for compromise from both of them.

After conciliating with them, both agreed to a mutual solution: Daniel would give back $1,000 to Hannah after her compromise of $800. Both parties also agreed to let the matter go at this junction and move forward. Although legal knowledge played a big role in this case, I don’t believe that it was the most important factor in settling this case. Building a rapport by good and active listening skill showing empathy and sympathy, making the parties comfortable for the options proved to be far more critical. I am happy that everybody is happy!

Bridging Cultural and Generational Conflicts in Mediation

One morning, a Chinese single mother called the DRC. The first thing she asked us was if we could kick her daughter out of the house. I heard this and I felt what she said was very strange. Why did she want to kick her own daughter out of her house? So, I asked her to speak slowly and tell me the whole story.

This mother told me that she has a daughter, her only child, and this daughter was born and raised in Los Angeles. She raised her daughter with a lot of passion and energy and eventually, her daughter was able to attend one of the best university in Los Angeles. Last year, the daughter graduated and was then able to find a decent job. Not long after this, she started dating someone younger than her who was still attending college.

Ever since her daughter started dating this boy, she would often come home very late, and one day her mother discovered birth control pills in her daughter’s car. The mother has always paid a lot of attention to her daughter’s education and upbringing. She is also very proud that her daughter was able to attend a very good university. However, growing up in a very conservative and traditional environment in China, the mother couldn’t accept that her daughter was coming home late every night and presumably, having sex with her boyfriend. She felt very ashamed of her daughter’s behavior. As the mother spoke to me, she used some very extreme language denoting her anger and disappointment at her daughter.

I initiated a call to the daughter after taking the mother’s intake. The daughter and I conversed in English which allowed her to better express her feelings and speak the truth of her thoughts. The daughter became very emotional during our conversation. She agreed that what her mother told me was the truth, but she felt even more pain than her mother. She could not stand the very harsh and cold language her mother used anymore. She felt like she had to remain silent ever since she was little, because her mother never gave her the chance to speak up. However, though she felt like she was unfairly treated by her mother, she also understood how important she was to her. She knew of the sacrifices her mother did just for her, never going out with her own friends so she could be at home with her. But, she also didn’t want to compromise the relationship she had with her boyfriend.

This case presented us with a few challenges:

  1. There is a cultural conflict as the values of the mother and daughter are different
  2. There is a generation gap. The mother and daughter grew up in different times and circumstances; they have different attitudes towards what proper sexual conduct between couples should be.
  3. The mother believes that her daughter failed to live up to so many years of upbringing as the mother believes that her daughter does not know how much effort was put into raising her; the daughter believes that she has put up with a lot of her mother’s  harshness for many years and that the mother does not understand her.

We saw that the way to successfully solve this case was to guide the mother and the daughter to understand and accept the differences between each other.

We realized that both parties are upset with the other on certain issues, but at the same time they still very much love each other. The mother had always prioritized her daughter’s well-being and the daughter also dearly appreciated her mother. Their common interest was maintaining a healthy mother-daughter relationship.

These factors allowed us to know before beginning mediation that there was hope of repairing the relationship. We hoped to help the mother understand her daughter’s lifestyle while ensuring that the two will mutually support each other in the future. In order to help both sides better express their feelings during mediation, we spoke to the mother in Chinese and in English with the daughter. Our bilingual mediators allowed for smoother communication between both sides.

In this case, the mediation had limited success in that because the mother was ultimately unable to flex some of the ideals she carried to allow for acceptance of her daughter’s perspective. However, both sides did make some concessions: while the daughter has moved out, the mother has been providing some financial support for her independence. Most importantly, according to our follow-up investigation, their relationship has remained stable, with the daughter still regularly coming back home for dinner and with both sides mutually supporting each other. This is the beauty of mediation.