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!