Thursday, April 12, 2012
It’s an unremarkable, narrow spit of dirt road that drew neighbors into a simple property dispute that ended in bloodshed. Tensions escalated one battle at a time as one neighbor tried to exert his ownership – by planting a small garden on the disputed turf, then placing a large boulder between the properties. His neighbors hurled insults in return.
A 911 call recorded their final confrontation: “Get out of our lives” was met by “Get off my property.” Gunshots followed. Mel and Elizabeth Grimes’ final pleas for help and their last words to each other – “I love you” – were also captured in the call.
John Kenney, a retired engineer, admitted to shooting his next-door neighbors after Mel Grimes, a popular local attorney, took a sledgehammer to the boulder at the foot of his driveway in Carmel Valley, on the property line.
“It was a war,” says Monterey County Assistant District Attorney Berkley Brannon, who prosecuted Kenney. “There were no compromises.”
That war ended with two dead and one serving a life sentence, all for seemingly small spoils: There had been complaints about sharing the costs of a bridge repair, and about dogs running freely. Kenney’s boulder went on a parcel the Grimes crossed every time they pulled out of their carport.
“When you’re dealing with a dispute that involves your own home, it is not something that goes away easily. It can be a constant drain and a constant source of aggravation that frequently, people will begin to obsess over,” says Brannon. “You view your home as your castle, your sanctuary, a place to get away from pressures.”
The murders shook the county, and attorneys took heed. “You definitely have clients that come in who are angry,” says San Jose-based Nick Cvietkovich, who represented Kenney during part of his conflict with the Grimes. “What I tell them now is, it’s just not worth it. You need to move on. Being that angry with anything in life is not worth it.”
Land-use attorneys approach neighbors more gingerly than before. “You don’t want to walk up showing your teeth,” says Aaron Johnson of Johnson, Moncrief & Hart. “That first contact is a critical stage in the process.”
After the Grimes murder in 2007, the legal community convened a working group to consider how they might prevent simmering disputes between neighbors from boiling over. In 2008, the Monterey College of Law’s Mandell Gisnet Center for Conflict Management launched the Neighbor Project – Neighbors Engaged in Gaining Harmony by Offering Resolution – in which volunteer mediators bring neighbors to the table to try and resolve differences.
Sara Sturtevant, program manager of the Mandell Gisnet Center, believes mediation could have saved Mel and Elizabeth Grimes’ lives. “I think if they had mediated they would’ve understood each other a little bit better,” she says. “Sometimes the agreement is, ‘Let’s not talk to each other.’ The important thing is that everyone feels safe.”
On a chilly morning, three slim, dark-haired sisters wait in Monterey County Superior Court, where the mood is equally icy. Still wearing coats, they wait to go before Judge Larry Hayes in hopes of evicting their brother’s girlfriend from their mother’s Salinas home. Their brother is serving a prison sentence, and they want the girlfriend and her three kids gone. The girlfriend says she has no money and nowhere else to go, and has been caring for the sisters’ ailing mom.
A mediator from the Mandell Gisnet Center announces he’s available for voluntary, free mediation, and the parties agree to leave the courtroom for a windowless conference room, where they negotiate privately (in keeping with mediation rules, the Weekly has agreed to keep the names of parties confidential).
One sister stays behind in the courtroom. She talks about her mother’s failing health – she’s blind and can’t read the labels on her bevy of medications – and suffers from emphysema exacerbated by the girlfriend’s smoking habit (she even has a cell phone photo of the cigarette butts). She delivers a sandwich or a hamburger to her mom each night, and would prefer not to interact with their unwanted tenant.
More than an hour later, the sisters and their tenant return, red-eyed and without an agreement, to the courtroom. They’re sworn in on the stand, and make their cases to the judge.
“My mom is 86 years old,” the eldest sister says, trying to make the case that she needs to become the primary caretaker. “She’s becoming incontinent. She spends many hours in the bathroom.”
Hayes cuts her off: “That may not have a bearing on the case,” he says. “Did you ever serve a notice to vacate?”
Emotion and principles, factors that often drive parties to court to begin with, have little space in the courtroom. This leaves even champions of the judicial system pushing for mediation, where parties are free to vent frustrations – a process mediators say is more healing than legalese.
“The court doesn’t care how you feel about a case. There’s not time for it, there’s no space for it,” Sturtevant says. “The court is good at lots of things, but not at solving the emotional content.”
The unwanted tenant makes her case. “I’m caring for their mother, and they’re not helping out,” she says. She presents a letter of support from her boyfriend, and says his mom also wants her to stay on as her caretaker.
But the letter is emotional, not legally binding. After reviewing the legal notices that have been filed on the unwanted tenant, Hayes gives the tenant one more shot to argue she has a right to be living in the house. “I’m on a varied income,” is her final plea.
“That’s not a defense, having inability to pay or inability to move,” Hayes says, and orders a five-day eviction notice. The girlfriend is crushed, the lives of her children thrown into chaos.
Mediation takes decisions like these out of judges’ hands and lets those who are most directly affected decide. Merciful parties in an eviction can give a tenant some time to find a place to live or modify terms of a lease, instead of submitting to the judge’s decision.
Mediators also say avoiding litigation, and all the burdens that come with it – stress, cost and time, to name a few – contributes to a more peaceful, civil society. The rise of what’s collectively called alternative dispute resolution in the ’80s and ’90s came in an era when distrust of the legal system was growing.
“You wonder, maybe I should get a better decider than the person wearing the robe behind the bench,” says Bill Daniels, co-founder of the Mandell Gisnet Center and an attorney with the firm Heisler, Stewart & Daniels.
The court’s place isn’t necessarily to ascertain what right and wrong, but what’s legal. “The law is not really designed to address all of those things. It’s not completely consistent with morality,” says Kay Kingsley, presiding judge of the civil and family divisions of Monterey County Superior Court.
Before the Mandell Gisnet Center was founded in 2005, attorneys volunteered for court-appointed mediation panel, created in 2004. About 20 attorneys volunteer their time today to consider some 200 cases a year, with a 79 percent settlement rate. And Sturtevant splits her time between the court’s mediation panel and the Mandell Gisnet Center, ensuring they can work cooperatively.
The court-appointed panel has been “a smashing success,” in Kingsley’s view. “Parties eliminated future costs, the court saved its time. And the parties come away with something they agreed to, as opposed to something that was imposed upon them,” she says. “It feels so much better even if you don’t get what you want when you feel like you crafted it.”
The January day John Kenney had his barrier rock delivered, his attorney was standing by, and requested the Monterey County Sheriff send a deputy over. He had good reason to fear an altercation: The last time he’d made a point of staking his ownership of the 10-by-four-foot strip of ground by planting a garden, Mel Grimes drove his car back and forth over it, according to court documents.
When Kenney started photographing Grimes driving over the garden, Elizabeth lunged for Kenney’s camera, allegedly injuring him as she yanked the neck strap repeatedly. The two were subsequently granted restraining orders against each other.
“It was both sides. It was so toxic,” Cvietkovich says. He’s skeptical of Sturtevant’s claim that mediation could’ve saved the Grimeses. “Those two sides, they were such strong personalities. They both felt entitled, I think, and they both felt the other side was wrong. When you’re not willing to be empathetic, looks what happens – tragedy strikes.”
Mediating early, before there’s an aggravating legal process underway, is where the Neighbor Project stands to leave its most profound mark. “Restraining orders tend to do exactly the opposite of what we want them to do,” Sturtevant says. But earlier intervention requires awareness from collaborators: “The thing that’s different is that no other community mediation center has such a good working relationship with officials,” Sturtevant says.
Code Enforcement is typically the first line of contact with potentially feuding neighbors. Irma Gowin, senior code enforcement officer for the city of Salinas, has referred 10 cases (a small fraction – she closed 1,400 complaints last year) to the Neighbor Project. As she investigates excessive parked cars and illegal add-ons, she keeps an eye and ear out for signs of a dispute.
“When they first vent, it’s a powerful venting,” Gowin says. “It’s no longer giving the other party the benefit of the doubt. It’s accusations and wanting vengeance. Those are red, red flags.” Code enforcement actions alone don’t always solve neighbor disputes either, and potentially exacerbate tensions. But if parties can let go of their need to win absolutely, mediation can work.
“Not all parties leave happy,” says Assemblyman Bill Monning, D-Carmel, who was the founding executive director of the Mandell Gisnet Center. “I think there’s a misimpression that people reach a kumbaya moment and everybody’s happy, but people often feel on both sides that they gave up too much.”
That sense of loss is preferable to the alternatives, Monning adds: “One of the measures of success is they’re not going to be engaged in a protracted court battle over the next year or two, and they can move on with their lives.”
But sometimes parties are so steadfast that moving on seems impossible.
Kenney still maintains he acted in self defense, and that Mel Grimes was prepared to bludgeon him with the sledgehammer. His case went before the Sixth Appellate District Court of Appeal April 10.
Brannon, the prosecutor, says Kenney doesn’t have much of a case: “He was at war. He brought his gun to the field of battle and finished the conflict.”
Media coverage at the time of the Grimes murder implied a property survey could’ve saved their lives, with headlines like, “Simple Title Search Could Have Saved Two Lives” and “Straying over the property line isn’t always deadly, but it can be dangerous.”
But for the most part, mediators with Mandell Gisnet aren’t attorneys prepared to review parcel maps, calculate damages or interpret easement rights. They’re trained largely as listeners and to search for a patch of common ground in the toughest cases.
When Daniels speaks about mediation and its ability to give parties decision-making power over their own destinies, he sounds more like a behavioral psychologist than an attorney. He talks about feminist theory, and penetrating obstructionist thinking. “We live in an age of selfishness,” he says. A mediator’s greatest challenge, Daniels says, is getting parties to ditch the tendency to frame things in the first-person singular.
Bill Shelby, who’s been a volunteer mediator at the Mandell Gisnet Center for four months, is coming off of a decade working for D.C. think tanks, where he helped facilitate conversations between ministries of defense from the former Soviet Union transitioning to democracies.
A lot of his work in the Caspian Sea region has bearing on his work with individuals in small claims or eviction cases, Shelby says, but dealing with people can be more wrenching than brokering international peace between unfeeling political entities. “You’re getting to understand the position of the other party, and knowing where you agree and disagree,” he says, “but you’re dealing with a lot of pain.”
It’s once that dirty laundry is aired – by far the more time-consuming part of a mediation – that parties can begin crafting an agreement. Many mediated agreements aren’t legally enforceable, but they work when both parties have agreed to make their lives easier.
Sturtevant remembers a case in which two women filed restraining orders against each other – one thought (incorrectly) the other was sleeping with her husband. “I can’t make the chisme stop,” Sturtevant says, dropping the Spanish word for gossip, “but they agreed to stop gossiping about each other. Some of that’s just kindergarten, just be nice – we forget it as we grow older.”
Charles Dickens’ 1,000-page novel Bleak House sets court proceedings against a dreary Essex backdrop with a foggy Monterey likeness.
Nobody involved in the years-long suit knows what exactly it is they’re litigating, but “no two lawyers can talk about it for five minutes without coming to a total disagreement.”
Dickens tapped into a still-popular distaste for court. Keeping the court’s large caseload – 6,000 complaints and 20 jury trials in civil court last year in Monterey County – helps cases move at a reasonable pace and keeps expenses down. Alleviating pressure on the courts also gets traction in the Legislature.
The California Dispute Resolution Programs Act of 1986 allows local jurisdictions to allocate up to $8 of each filing fee (currently $395 for a civil complaint, and another $395 for the defendant’s response) toward dispute resolution programs, like mediation, that serve as alternatives to formal court proceedings.
In 1970, Bill Daniels lost faith in the ability of courts to be truly principled. He was an attorney with California Rural Legal Assistance at the time, when Ronald Reagan’s Office of Economic Opportunity director Lewis Uhler published an inflammatory report based on sketchy presumptions about CRLA’s operations and ethics.
So Daniels focused instead on education and helped create the Monterey College of Law in 1972. He was chair of the board 20 years later when he was looking for cash to create a community center for conflict management.
He heard that Maurice Mandell, a Carmel resident and Stanford University alum who was fed up with donating money to his alma mater, and his wife, Rebekah Gisnet, were looking to bequeath his estate to a cause.
The couple’s $4 million property was split between the Community Foundation for Monterey County and their namesake center, providing seed money and part of its annual $250,000 budget, supplemented by training fees.
Sturtevant hopes to expand the center into a regional training center. “My goal is to train every man, woman and child in Monterey County in conflict resolution,” she says. She’s already trained all 225 Monterey County Superior Court staffers as of last month.
Mediators – some law students, some professionals volunteering time – are on hand at small claims and eviction hearings, so willing parties can try out free mediation in hopes of settling.
The Neighbor Project comes closer to the center’s mission statement, stipulated in the bequest: “to replace combative advocacy with a mediative empathic, problem-solving point of view.”
The Neighbor Project has fielded 100 cases since it launched. And though it’s impossible to measure exactly how many violent crimes the Neighbor Project prevents, Kingsley believes it’s working: “Could we ever prove it prevents a murder? No, that’s impossible. In my heart, I think it probably has, and will.”
A white corral fence, at once rustic and stately, was a finishing touch to the country home of a Salinas Valley State Prison guard’s dreams. He still sometimes drives a grader back and forth across part of his yard to keep the pasture flat and soft for his horses.
But the fence extends 20 feet into what’s become a focal point of hostility in this sliver of North County paradise.
That’s where his property borders on his neighbor’s, whose long, narrow parcel borders the property of a half dozen other neighbors. After the two butted heads over the fenceline, relations iced over and the two stopped talking. They’ve each sunk thousands of dollars into legal fees to get their properties surveyed, and still don’t agree on where the boundary is, but are determined to make court the absolute last resort. The guard has instructed his children never to climb this stretch of fence, even to chase a runaway ball.
Seated in a conference room at the Mandell Gisnet Center across from two volunteer mediators, the neighbors make an improbable pair: the correctional officer wears black slacks, a black athletic jacket and a cap. He comes armed with a thick binder chronicling every code violation he’s been accused of and the paperwork to resolve them, part of his dogged interest in going by the book. His neighbor, a teacher, wears heavy silver jewelry with large gemstones, and sports a red plaid jacket over a colorful tie sporting the image of a wolf.
The parties spend more than two hours telling their sides of the story, addressing the mediators rather than each other. They fail to come to an agreement after one session, and the teacher says the sergeant’s proposed fix – moving the fence – won’t alleviate a decade’s worth of other grievances about trash removal and grading.
“At this point, it’s on my property. He’d be trespassing to even touch that fence,” he says.
Nat Agliano, retired presiding justice of the Sixth District Court of Appeal and Monterey County Superior Court judge, now works as a mediator and arbitrator for Irvine-based JAMS, formerly the Judicial Arbitration and Mediation Services, Inc., the world’s largest provider of such services.
He says what might look like single-issue neighbor disputes represent far more: “What’s most important is that the parties have to live together.”
That’s the objective of the Neighbor Project, which sometimes meaning letting go of stubbornly held principles. When neighbors take justice into their own hands, it can result in disaster as it did in Carmel Valley. Kenney is now aging in Folsom State Prison; even if he’s freed on appeal, the home he killed to protect is gone, handed over to his attorney as payment for his services. Next door, the Grimes home went to a son who sold it in October.
The Prunedale neighbors may still wind up doing battle in court. But at least they’ve started talking again. Even if it won’t likely lead to a block potluck, the Neighbor Project has initiated another conversation. And even for those who arbitrate justice, that’s something to be hopeful about: “I really believe that we are building a more peaceful society,” Kingsley says.