Mediating Animal Law Matters


Animal law matters are slowly making their way through our court system, resulting in some changes in the way we, as a society, view our relationships with non-human animals. Courts are increasingly struggling to reconcile two opposing constructs: the idea that non-human animals are property under the law, and the reality that non-human animals are different from other forms of property. Progress in resolving this tension within the courts is, and will continue to be, slow. The question then arises, what alternative exists?

Mediation is a method increasingly turned to in this country as an alternative to traditional litigation. It has become a fixture in many courts and communities and provides a way for individuals to resolve their own problems. Mediation is often successful because it allows the parties to take into account more than the legal realities affecting a conflict. It also allows the parties to craft for themselves a remedy that is tailored to the particular needs of a given situation. This flexibility and autonomy in decision making presents tantalizing possibilities for those with animal law disputes. It also suggests some significant drawbacks. How then does mediation work in the area of animal law? This paper will explore some of the issues presented which are particular to animal law, as well as explore the implications of mediating issues within this emerging area of law.

Some issues arise out of the specific legal questions at stake, for instance, in a divorce. A divorce is a difficult time in the lives of individuals. It is always more complicated when there are children, and when there is significant property to distribute. The situation becomes immeasurably more complicated when the property in question is a non-human animal, considered part of the family. The difficulties arise from many sources. Because animals are considered property, there is no way for the court to equitably divide an animal which is deemed marital property. If both parties love the animal and wish to continue a relationship with it, the court is at a loss for a resolution. There is no custody or visitation for property, no guardian may be appointed to determine what is in the property=s (animal=s) best interest, and neither party is likely to be satisfied with an award equal to the animal=s economic value alone.

How would this dispute fare in mediation? One benefit of mediation is that the parties need not be bound by existing law and precedent. Therefore, if the parties wish to bind themselves to a custody and visitation agreement, a mediator should facilitate this outcome and help the parties craft an enforceable contract or agreed judgment entry. The court may consider such an agreement against public policy, or may feel it is without jurisdiction to enforce such an agreement. A more difficult problem, however, arises when only one party wishes to deviate from the law and the other insists on accepting the view that the animal is mere property. In such a case, the mediator is unlikely to help the parties come to a mutually agreeable solution. The difficulties here are more complex than when mediating custody and visitation of children, because there are many protections for the interests of children already built into the law which act as a check on the parties= ability to craft outcomes. In the case of animals, no such protections exist, and worse, there is no ready mechanism to discuss the need for such protections within the litigation context.

Difficulties mediating animal law issues will arise not only as a result of the legal questions involved, but also as a result of the moral and philosophical nature of the questions presented. For example, we do not have good tools to help us handle those cases in which people collect animals, ostensibly to protect them from harm, and in doing so, fail to provide adequate care for the animals. The defense of necessity is rarely successful even when human life is at stake, and one might reasonably assume it would be less available with regard to animals. It is unclear that a mediator would have the ability to handle the philosophical and psychological dimensions such a case might present, especially absent some clarity in the law, which at present, is lacking.

Still additional issues arise at the very notion of mediating matters arising out animal law as it is an emerging area of law. What is the best way for the justice system, and those involved in it, to address legal matters relating to animals? Some would say that only through traditional litigation will we see resolution of legal questions relating to animals. This is a sound response - it is important for any emerging area of law to develop and codify precedent. One might also posit that it is through the resolution of cases in the court system, and the resulting social dialogue, that community consensus is formed and evolves. On the other hand, one might also logically claim that an alternative process is more likely to allow for the development of satisfactory outcomes in those cases where the law is not sufficiently developed to take cognizance of certain claims. As long as the law does not recognize in non-human animals more than mere property status, it cannot recognize, and therefore compensate, any number of harms asserted by those who feel themselves in a relationship with those non-human animals.

A number of ancillary questions then also arise. Is it possible to determine under what circumstances mediation or litigation is preferred in resolving legal disputes relating to non-human animals? Is it possible to develop guidelines to help us make those determinations? How much does, or should, the law developing around animals inform mediation processes. Does private justice always hurt the development of an emerging consensus in a developing area of the law? Or can private justice in large enough quantities inform the development of the law through individualized trial and error and assessment of outcomes? Does the explicit nature of the questions of morality and fairness in the context of legal issues relating to non-human animals affect the answers to these questions more than in other contexts where moral questions are not recognized or are more implicit? Is it appropriate for parties to use mediation expressly because they feel there is inadequate remedy at law? Do parties in mediation look for more equitable application of the law or exceptions to the law?

These and related questions are what this paper will explore.


Animal Law | Dispute Resolution and Arbitration

Date of this Version

August 2006