Skip to content

The Emotions of Adjacent Property Disputes

April 13, 2019

[Advertisement*]

When someone stands too close to us, we are uncomfortable.  If someone breaks into our home, we feel violated.  If another driver cuts us off on the road, we are upset.

Why?

Among other possible reasons, each of us has a personal space, the impingement into which, I think, threatens us in one way or another.

It occurs to me that the perceived violation of personal space (i.e, “you’re on my property”) may be one reason why mediations involving boundary disputes, easement conflicts, encroachment issues, nuisance, and the like, are so emotional and difficult for litigants to settle.

Sometimes, in these mediations, not only is there a property right at issue as to the land (or interests in the land), the dispute is complicated by the neighbors’ past — sometimes violent — acts or threats of action that have given rise to claims of assault or battery, trespass, damage to property, intentional infliction of emotional distress and so forth.

Let’s face it; angry neighbors can be provocative, vindictive, and outright mean to one another, and each action or reaction fuels the fire of further discord.

Perhaps the threat as to personal space (i.e., “this land is my land”) is one that triggers the fight-or-flight response which hijacks the amygdala and shuts off the cortex, making it hard for one to think clearly about the situation in the moment, or thereafter. See, https://www.verywellmind.com/what-happens-during-an-amygdala-hijack-4165944

And this may be a reason why it is so hard for disputants to settle adjacent property disputes.

People in conflict bring to the mediation their recollections, and their intended recital, of the past turmoil; and their attorneys, as taught in law school, bring to the mediation their analysis of the past events as well.

As I see it, this reflection of the past’s upheaval exacerbates the turbulence in the present (i.e., in the mediation).

And this makes it hard for people to think clearly about resolution.

It is hard for them to switch from their focus on the past, where the problems they face started, to the present/future where the solutions to those problems may occur.

And that translates to time.

A memorable mediation took place a few years ago concerning a claim of prescriptive easement over a portion of a hillside owned by the downslope neighbor but used for recreational purposes by the upslope neighbor. The downslope neighbor was highly incensed by this encroachment and, at the mediation, was red in the face with rage. The upslope neighbor was nearly as upset.

It took nine hours to settle this matter once the disputants’ high emotions were first dealt with and then a sharing arrangement for the disputed parcel could be worked out.

Even in the short term, I have heard that, once the amygdala fires, causing such things as an increased heart rate, a release of adrenaline, shaking, sweating and so forth (ibid.), it may take 20 minutes, more or less, for those effects to wear off and for “normal” conversation to resume.

Which is why I recommend a break in the negotiation sometimes for people to cool off.

So time is one key to mediating these cases.

So is an attentive, empathic, and patient mediator with an understanding of how emotions play into the conflict and the subsequent resolution, if any.

And so are the attorneys with a realistic understanding that, even at the end of the day, the emotions may outweigh the logic of, or their desire for, resolution without trial.

***

David I. Karp is a full time independent mediator of real estate and business disputes in Southern California. His website is at http://karpmediation.com .

*This post is marked “Advertisement” so as to comply with the State Bar’s Rules of Professional Conduct if applicable.

Advertisements

From → Mediation

Leave a Comment

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: