After you get the mediation going and each party states what their conditions are, it’s the mediator’s purpose not to tell them what to do, but to get them to agree so it’d be better for everybody.
Bob Swan, Knox County Mediation Director
Bob Swan, the creator of mediation services in Knox County, sat down to explain the process of day-of-court mediation and the benefits associated with the practice.
KW: What is your position in the Knox County court system?
BOB SWAN: I am the Judicial Clerk and Mediation Director for the General Sessions Judges. I run the mediation program which actually I started along with Professor Grieve from the [University of Tennessee, Knoxville] law school and one other attorney in 1993. And we incorporated the community and mediation center, which is still active. And we’ve been mediating ever since then for all those years.
KW: What rules and laws have been established for landlord and tenants in Tennessee?
SWAN: We are under the Uniform Residential Landlord-Tenant Act. For a long time, there was a split in the state. When I first got here only five or six counties were under the uniform code. And the rest went under a separate part of the TCA—Tennessee Code Annotated. Over the years, they kept adding more counties and about eight or nine years ago, all of Tennessee [came] under that statute. Before that, the landlord had most of the law on his side. There was very little tenant law and rights to the tenants. So now under the Uniform Residential Landlord-Tenant Act, the tenant and the landlord each have a bundle of rights.
KW: How many landlord-tenant cases pass through the courts in a week?
BOB SWAN: This is Tuesday’s docket. It had 130 cases—that’s 130 landlord-tenant cases that morning.
KW: Are there specific cases that mediation handles?
BOB SWAN: The ones that are pro se—they’re the ones we mediate.
KW: What is a pro se case?
BOB SWAN: In this particular [docket] we have two pages of pro se’s, meaning there are no attorneys listed. It’s usually a person that owns a house—one house or two houses—and they rent those.
KW: How often do mediations occur?
BOB SWAN: We mediate cases on Monday, Tuesday and Wednesday in civil [court]. They’re mainly the pro se cases. But we do mediate cases that have lawyers on them, but more rarely than we do pro se because I’m looking for pro se cases. It gives the individuals a little better opportunity to make a settlement since there are no lawyers attached to them.
KW: How does mediation work?
BOB SWAN: We do a dual-mediation concept. I have two mediators on each team. Normally, mediators work as a solo unit, but we don’t. Since we started in ’93, we believe in the dual mediation concept. And have done it and the mediators are trained to mediate with each other. We do day-of-court mediation. We don’t schedule mediations. As people kind of line up outside of the courtroom or get in the courtroom, we’ll go in and read a little blurb that ‘this is a state-certified mediation program […] and that we provide free services to you people if you’d like to have your cases mediated.’ And we explain the mediation process to them. Or they’ll come up and we’ll take them out of court with the warrant, look at it. Both parties have to agree, obviously, to mediate—the landlord and the tenant.
KW: How receptive to mediation are both parties?
BOB SWAN: A lot of the landlords like to mediate. We bring them in, and they sit down with the mediators on one side of the table and the tenants and the landlord on the other side and any witnesses they may bring. And they all sit down and we’ll read what is on the warrant to them and give them each a copy of the process because a lot of people come to court and don’t bring any of the paper work with them—not the landlords, these are the tenants that don’t do this.
KW: What is the most common reason for detainer (eviction) cases?
BOB SWAN: It’s usually rent or damages. The landlord will go through and say, ‘Okay, you owe me three months’ rent. And you haven’t paid me, and you’ve done this amount of damage.’ And the tenant will come back and say, ‘Well, I can’t do it because I lost my job,’ or the tenant will say, ‘I’ve got damage and you’re not fixing that damage.’ There’s a lot of reasons going on here. And a lot of times this is the first time the landlord and tenant have ever even talked to each other about this—especially the people who have a lot of tenants. It’s much more where you have a familiarity connection between the landlord and the tenant because the landlord has only one or two or three units and the tenants, he gets to know them. These are the ones that will come in at nine months, ten months of rent because the landlord keeps trying to get them to pay and trying to let them get straightened out in their lives. There’s a lot of other issues going on here. Sometimes it’s just people who have family members in the house with them and want them out. They don’t want them to stay there any longer because they’re creating problems or they’re bringing in drugs or they’re doing damage to the property or there’s been a will that’s been read and gave the one individual the ownership of the property and but some of the other siblings are living there and now the new owner doesn’t want them there and you have to get them out.
KW: What is the ultimate goal of mediation?
BOB SWAN: After you get the mediation going and each party states what their conditions are, it’s the mediator’s purpose not to tell them what to do, but to get them to agree so it’d be better for everybody. We try to bring the parties together. In mediation you can do anything you want to. You don’t have to just get possession and get money. You can make any kind of other offer. Under the law, when you’ve got a judgment, you have ten days to appeal to the circuit court—most people don’t—but during that ten days, you can stay in your house; it’s usually possession within ten days. In mediation, we can have landlord say ‘Oh, you can stay there for 25 days.’ And it could be a partial payment. Or ‘You can stay there for 45 days and if you give me a payment and it looks like you’re going to be able to pay my back rent, then you can just stay.’ And so, we can write up all of these conditions that the court can’t do—in mediation. And it really helps people get around the corners of the law.
KW: How many mediations generally occur within a year?
BOB SWAN: We’ll do hundreds of these a year.
KW: What’s the success rate for those mediations?
BOB SWAN: The success rate is any time you get somebody into mediation. But in reality, whether you get an agreement or don’t get an agreement? It runs about 70-75 percent you do get an agreement. It’s a good, solid statistic, and I’ve got them going back 25 years doing that.
KW: Why should landlords and tenants attempt mediation?
BOB SWAN: It’s a great benefit to both the landlord and the tenant. The landlord: because by mediating, they can lay out a plan that is different from what they can in the courtroom. And it’s kind of similar for the tenant. The tenant […] having them mediate really helps them. We don’t act as their lawyers and we don’t act as the landlord’s lawyers. A lot of my mediators are lawyers and they have to put their lawyer hat aside while they’re mediating, so they don’t give legal advice or anything like that. The whole purpose of the mediators is to bring the two parties together; help them structure the idea. If they don’t get an agreement, and we don’t get an agreement sometimes, it really helps the parties because a lot of times, they got rid of their hostilities, it’s the first time they’ve ever talked to each other in many cases.
KW: What if the landlord has legal representation but the tenant does not?
BOB SWAN: The lawyer just sits in there, does not participate, other than to give the landlord any legal advice the they might need which isn’t used in mediation anyways. Landlords will come in and be willing to mediate when they’ve been paid their fee to represent them and they weren’t planning on mediating so they kind of somewhat feel the need to sit in there because they got paid. Okay, you’ve got a lawyer you’ve just paid them $400-$500 to go in front of the judge, but you’re not. You’re doing this in mediation. So, the guy that paid them might get a little hostile if the lawyer doesn’t come with him because you just paid them all this money. And the lawyer’s function is to just give legal advice to their client if, in fact, their client needs it. Every once in a while we’ll get a rambunctious lawyer in there who wants to represent his client in the mediation session and we’ll either have to, we’ll take the lawyer outside and have a little discussion with him about his rights, what he really should be doing, and if he doesn’t want to we just terminate the mediation, let it go back into court. If the parties can’t come to an agreement and they get really hostile or there’s no way after a couple of hours that you can get them to think in a way that will benefit both of them, we put them back in front of the judge.