December 2014 Bar Bulletin
Drawing Property Lines in ADR Can Be Touchy
By Charles Burdell
"That's legal larceny!"
This was a defendant's retort during a mediation when it was explained that his property was at risk of being taken if his neighbor proved the elements of adverse possession. I was struck by his comment, because it mirrored one of the reasons given by Washington Supreme Court Chief Justice Barbara Madsen in a 2012 concurring opinion, which urged the Legislature to abolish adverse possession. She noted that "the doctrine's basis is legalization of wrongful acquisition of land by 'theft', conduct that in our time we should discourage ...."1
Problems like this, compounded with the fact that for many, ownership of real estate is a source of great pride and satisfaction, demonstrate why real property disputes are among the hardest to resolve in mediation. Most persons have worked their entire lives to obtain fee title to their property, they've paid a mortgage and expect to transfer title to their heirs. If they have neglected to notice that a neighbor has wrongfully used the property for the requisite period of time, it is hard to explain why the law allows such skullduggery.
Handling the emotions involved in this type of situation is difficult and requires patience and empathy by the mediator and attorneys. Attorneys should carefully consider the emotional issues related to their cases and inform the mediator of the situation and what to watch out for, perhaps informally through a pre-mediation telephone call.
This can be especially true when there are multiple owners of the property involved, such as in a condemnation case involving a homeowners association. Frequently, we are faced with a situation where the members of the association do not agree on an approach or a solution. In this case, the mediator has to conduct a "mediation within a mediation" to see if resolution among the association can be achieved.
When this occurs, it is important to have everyone in the association explain their position. It is difficult for the attorney to take one side or the other, so the mediator must help guide the decision makers to a common theme.
Whenever I am asked to mediate a case involving a boundary dispute, I suggest that the mediation be conducted at the property. The "legal larceny" retort was made while I was sitting in the property owner's living room. Being there allowed everyone to show me the problem, rather than having to rely on photographs, maps or drawings in a mediation conference room.
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