« Previous | Contents | Next »
Listen
The Role Of Mediation In Tackling Neighbour Disputes And Anti-Social Behaviour
9. REASONS FOR NOT PARTICIPATING IN MEDIATION
9.1 One objective of this study was to investigate the reasons why some parties to a neighbour dispute do not take up the offer of mediation. Below we present the results of interviews with referrers (mainly housing officers) and 'refusers' themselves.
Referrers' perspective
9.2 In general, the main reason given by housing officers interviewed for this research for disputants refusing mediation accords with that in Mulcahy's study (Mulcahy, 2001), that is, unwillingness to engage with the other party. As one officer put it, 'As soon as you mention face-to-face meetings many people shy away. They are concerned about having to face their neighbour and have a dialogue'. This was particularly the case where a dispute had been ongoing for some time; officers felt that mediation was more likely to work where there was an early intervention (for example with new neighbours). One officer felt that there had to be some goodwill left: 'Some kind of connection needs to remain if things are going to work out'.
9.3 While the thought of having to meet the other party puts some people off, officers do explain that this is not essential. Yet even with a shuttle approach, it was felt that people were often still reluctant to get involved. Officers thought this was based on a fear that the alleged perpetrators would refuse to accept that there was a problem, or that they would try to 'pull the wool' over mediators' eyes. Thus, they felt that people were often wary of a 'stitch up', not by the mediators (in whom a good deal of confidence was expressed), but by the other party 'scheming' against them. Officers also found that some people are highly sensitive to procedural matters; for example, they object to which order mediators approach the parties. One housing officer explained that 'we advise people to bring notes with them as a tool to use to stay focused and not get knocked about'. However, it was recognised that sometimes people seem to get 'paranoid' about their neighbour and the dispute:
'Disputants may end up thinking that the other party is spending their time thinking of ways to get at them any way they can. For example, they think that if the other party is laughing in the next house, they're laughing at them. The dispute becomes a focal part of their whole life. It takes over, and you can see them deteriorating.'
9.4 Mediation is demanding, and may fail where one person has underlying emotional or health problems and can't cope with the process. However, there was not a sense that disputants needed to be particularly skilled in order to engage in mediation. When asked directly about this, officers said that this was not a factor that sprang to mind when people refused mediation, and that people of different backgrounds and abilities had been known to engage successfully with the process. Yet they acknowledged that level of 'ability' was something that they might not pick up immediately because, as one officer put it, 'People aren't going to tell us that, are they?' On reflection there was recognition that the more skilled and confident somebody felt, the more likely it would be that they might see a positive outcome emerging from the process and vice versa. Officers thought that mediators built up people's confidence effectively once they were in contact with the mediation service, but acknowledged that these issues might be influential for disputants who do not take it this far.
9.5 Many disputants appear to have anxieties about proceeding with mediation. Housing officers identified a key further source of anxiety as a fear of reprisals following mediation. Indeed, this was considered to be a major barrier. Officers felt that in cases where there has been a history of violence or viciousness the dispute may already be too serious to be dealt with through the mediation service. For example, threats such as slashing car tyres or setting dogs on people were not uncommon. Even where people had not been actively threatened it was accepted that many people still felt fearful of the other party in their dispute. Reprisals did not have to include physical intimidation or violence. Staff pointed to examples where alleged perpetrators simply escalated the behaviour that had led to the dispute in the first place as a way of getting back at their neighbour. There was a general sense of frustration that it was not always easy for the authorities to observe this behaviour directly, and therefore to get the necessary evidence to take firmer action.
9.6 Housing officers thought that often refusers want someone else to solve the problem and do not want to take responsibility themselves. One officer commented that:
'People look for an element of authority to legitimise any agreement. With mediation it's a matter of getting a contract drawn up and signing it, but it's just a moral commitment - there are no sanctions attached. I would say that around 85 percent of refusers just want you to take their cases forward for them.'
However, while officers report that disputants 'usually want to include us in their fight', they remain keen to encourage people to take their own responsibility in the dispute. It is recognised to be in housing officers' interests to encourage people into mediation. As one put it: 'I get mediation in as quickly as possible so they can't complain about me doing nothing, then they have to do something about it'.
9.7 Officers recognised the value of mediation across a range of disputes, and that, in the majority of cases, things improve. If a dispute was considered to be relatively trivial there was a sense that mediation was an ideal route forward. Examples given were things like litter, grass cutting, washing lines and parking - although it was recognised that trivial issues can soon escalate into more heated disputes and that again early intervention might work best. However, even if the dispute was considered to be quite serious and perhaps less suited to mediation, housing officers were still keen to recommend mediation as a first step. In part this was due to a hope that mediation might indeed work, but there was also an attempt to avoid the mediation process being used unscrupulously. This was highlighted in one example where a disputant had initially refused mediation and officers had helped to prepare a court case against the alleged perpetrator. At the eleventh hour, with the court case ready to go, the alleged perpetrator agreed to mediation. Officers felt they had to advise the disputant to go to mediation, or face their court case being fatally weakened. There was a suspicion that, having taken legal advice, the alleged perpetrator had deliberately used mediation as a tool to get themselves 'off the hook'. An agreement was reached at mediation, but lately officers' initial misgivings appear to have been confirmed. After less than one year the parties are now back in dispute and a court case is again looking likely.
9.8 Across a wide range of circumstances there is a sense that mediation should be tried, and that many disputants potentially have a lot to gain from going through the process. Overall, referrers are therefore very positive about mediation and are keen to report successes. Yet mediation appears as the option that requires most effort by the parties or is threatening to them. Some officers commented that how mediation is perceived may be related to how it is presented within the range of options offered. This is particularly the case where there is 'competition' from other initiatives such as neighbourhood support teams. There is also evidence that there may be some differences between in-house and independent mediation services. In one authority where the mediation service was independent there was a sense that some housing officers were more aware than others about what mediation involved. Hence, while links here were generally perceived to be 'quite good', it was felt that presentations to staff by the mediation service and the training of housing staff as mediators would be useful ways of providing a more 'joined-up' approach. One officer commented that 'the more we all know about mediation, the better chance there is of us being able to sell it to people'. This suggests the need for detailed research on how housing (and other) officers explain and present the option of mediation.
Refusers' perspective
9.9 Many of the issues identified by referrers were confirmed as important in our discussions with refusers. In particular, analysis of the interviews conducted indicates that refusers were fearful of facing up to their neighbours, being out-manoeuvred by them during mediation, and/or provoking an escalation of hostilities. Additionally, the people we spoke to were often frustrated (or simply fatalistic) about authorities power to deal with disputes, and tended to lose interest when they realised that mediators were unable to offer a definitive judgment on their case. Several respondents explained that they had withdrawn from the mediation process because they did not wish to face their neighbour:
'I decided mediation wasn't for me. I didn't think it would help and I didn't want to sit in the same room is my neighbours to face the same abuse'.
'I didn't want to be in the same room as her… Because I see the kind of company she keeps. There's drug abuse in there, it's frightening. I just don't want to get involved with anybody like that.'
' I had already tried talking to them face-to-face myself and they didn't want to know. In fact the more I tried the worse things got. I didn't want that to happen again.'
9.10 There was also recognition that the other party might abuse or manipulate the mediation process. In many cases, relationships had clearly broken down to the point where some respondents did not feel able to trust the other party to keep their side of any bargain. One person claimed that her neighbour was 'as nice as pie' when the mediators called at her house, that they had tried to make out that she was the problem, and that as soon as the mediators had gone again the noise problem had restarted. On one occasion when the police were called, she claimed that the same thing happened but that this time the neighbour came and stood outside her house making obscene gestures as soon as the 'coast was clear'. This person felt that there was little chance that mediation would do any good, and that it was more likely to give a platform to her neighbour to make false accusations about her. Other respondents foresaw that a mediated agreement between them and their neighbours could itself cause problems:
'The mediators thought it would be a good idea to set a time period during the day in which music could be played freely, i.e. where I couldn't complain. I thought, 'This is nonsense - that guarantees me four hours of torture every day, no matter what. Why should I have to put up with that? I've done nothing wrong.'
'The mediators suggested shuttle mediation as a way forward. One mediator was going to stop in my house while the other one went to my neighbour, and between them they were going to set the level of TV noise. But this would have left us completely open - my neighbour would have known exactly what level to set their TV or radio at to annoy us, and I wasn't going to let that happen.'
9.11 In this way, there was a suggestion that the agreement could provide the basis for reprisals. This was not an uncommon concern. One respondent expanded one of the main fears that had led to them not taking mediation any further:
'Police were being called all the time to parties at 2 or 3 a.m. I was frightened mediation might escalate the problem, scared it might get worse. I had a feeling of panic - were we doing the right thing?'
9.12 However, fear of reprisals often went beyond an escalation of the dispute. It also inlcuded the threat of violence or deliberate damage to property. Indeed, when one refuser was asked what would have needed to happen for them to have gone ahead with mediation, their response was 'Police protection - although even with this I would have felt uncomfortable'. Another person stated that 'Mediation's no good for conflicts. In them [sic] situations it has to be impersonal - if they know who's reporting them you become a target.' Almost all respondents said that they were concerned that they or their families might face verbal or physical retaliation after mediation. This was a key factor in people's decision not to go ahead.
9.13 Refusers shared agencies' frustrations about not being able to gather evidence easily about other parties behaviour, particularly with regard to noise. One respondent detailed how there had been a procession of different agencies through her neighbour's flat, including housing officials, social workers and the police, and how they all appeared to be hamstrung by different regulations in taking further action:
'It's not the council's fault. There are housing regulations, human rights regulations - lots of things they can't do. The police have to go through social work but it's hard to get them both here at the same time, and anyway [my neighbour] behaves herself when they're around. Everybody says that getting proof is difficult and they need concrete evidence.'
9.14 Many refusers would like to see a definite resolution to the situation. In some cases, they even believe that the other party's behaviour warrants their eviction. Housing officers seldom agree, but where they do they readily confirm the difficulty in providing the burden of evidence required to follow this course of action. One respondent asserted that it was easier for councils to evict tenants for rent arrears than antisocial behaviour, and (rhetorically) asked whether this meant that money was considered to be more important than quality of life issues.
9.15 Although one person felt that it would still be better to come to a mutual resolution than 'having something imposed that you're not happy with', the desire for a definite resolution was a key factor for many of the refusers we talked to. As one respondent put it:
'I needed mediation to have the ability to say who is right or wrong - not to be impartial. I needed a decision to be made. Mediation were not going to say either way who was right or wrong and I thought - what's the point of that?'
9.16 Mediation does not appear to meet these people's expectations. They also tend to have been disappointed in the support they have received from authorities such as the council and the police. This is usually for the same reason - that these authorities won't make judgments about who is right or wrong. Rather than mediation, they want arbitration (and binding arbitration at that). Hence, there seems to be little faith in agreements where there are no effective sanctions attached. Yet even where respondents have rejected mediation and their problems are ongoing they do not appear to see the courts as an appropriate alternative option. None of the people we spoke to had any immediate plans to pursue legal action in relation to their dispute.
9.17 A lack of confidence in their own ability to participate effectively in the mediation process did appear to affect some respondents. This appeared to be based on their anxieties about how they would be able to respond if the other party did not co-operate with process and tried to make life difficult for them. Some respondents also felt that the dispute itself had taken its toll on their personal resources: 'It's hard when it is going on day in, day out. You can't sleep, and you go to work irritable'. However, those who had made contact with the mediation service were clear that it did not relate to any sense that they had insufficient information to understand the purpose of mediation or how it worked. Most respondents stated that they had been provided with this information, and that the mediation service had checked to make sure they understood it. Neither did refusals seem to stem from a lack of confidence in mediators themselves. Almost all respondents thought that mediators had the necessary skills, resources and approach to manage the mediation process effectively. Indeed, in one case mediation did not proceed because the problem sorted itself out after the mediators first made contact with the second party in the case. Just the 'threat' of mediation worked to eliminate the problem. Predominantly, respondents' contact with mediation services had been relatively positive, and there was general support for what the mediation service was trying to achieve. For most refusers it was therefore their neighbours, rather than the mediation service, that they did not trust to help bring about a satisfactory outcome to their dispute.
« Previous | Contents | Next »