Mediation isn’t as easy as clicking your heels, but it can be a magical way to resolve disputes

We’re Off to see the Wizard

by:Elizabeth A. Tippin

There’s no place like home!

There’s no place like home!

Unless, of course, your home is the source of an unresolved dispute. And condominium and homeowner associations, because of close living conditions, restrictions, and shared property, see disputes on a daily basis. A resident violates the rules by parking his boat in the community parking lot. Someone hangs laundry in their backyard or on balcony railings. Dogs hark, stereos blare, construction defects surface–a myriad of issues can create disputes. Special committees or board members can often resolve these conflicts. But when two sides cannot negotiate a solution, associations should turn to mediation. A mediator can quickly, efficiently, and cost effectively resolve a dispute, in a way that is lasting, educational, and productive. If Dorothy and the witch had consulted a mediator–and shared those red shoes–the witch might never have melted.

FOLLOW THE YELLOW BRICK ROAD

Mediation is a voluntary process. An objective third party, called a mediator, helps the two parties in a dispute to communicate and negotiate an agreeable, workable solution. Introducing a mediator to unproductive discussions will resolve most conflicts.

There are numerous benefits to mediation, including:

1. Mediation keeps the parties in control of their dispute–and its outcome. The mediator is not there to make a decision; he or she cannot force the parties to agree. Giving your case to a judge, jury, or arbitrator makes the outcome uncertain. There is less control. As a result, you may be less satisfied with the verdict.

2. Mediation resolves almost all disputes quickly, eliminating the costs and time of the court system or even arbitration. Mediators typically charge $150 to $500 per hour, though fees can vary greatly. The cost usually is split evenly between the parties. Traveling through the court system can cost $5,000 to $20,000, or even more.

3. Mediation allows the participating parties to learn about the other side’s position, to explore creative solutions to current problems, and to address future needs. Litigation and arbitration usually are concerned only with monetary awards.

4. Mediation is confidential and respectful of all parties. It gives both sides a chance to tell their side of the story. This enhances the possibility of continuing business or personal relationships, while giving both sides an opportunity to express their view. For condominium and homeowner associations this is particularly important since the disputing parties often live side by side.

5. Mediation can be utilized at any stage of the dispute. If the parties do not feel they have adequate information from the other side to mediate the dispute, they can exchange information and documents, conduct site inspections, or meet with experts to trade information on technical issues, such as repair proposals for construction defects. This informal exchange of information dramatically reduces costs when compared with traditional litigation methods.

Many people have misconceptions about mediation or still have never heard of it. Many attorneys continue to oppose mediation because they’ve never tried it or they’re more familiar with litigation. Sometimes they believe that if a case is resolved quickly they will miss out on attorney’s fees.

Associations must tell their attorneys that they want to try mediation. In some states, mediation is required by law. In California, for example, common-interest developments must mediate disputes with builders before filing a complaint in court for construction defects. Several California Superior Courts require some form of alternative dispute resolution shortly after a complaint is filed.

If mediation is not successful in resolving the dispute, the more lengthy, rigid, and expensive processes of arbitration or litigation can always follow.

SUGGEST MEDIATION FIRST

Suggesting mediation does not compromise your position, admit wrongdoing, or show weakness. Instead, it tells the other side that you want to discuss the problem and explore meaningful ways to resolve the dispute, with the assistance of a neutral mediator.

Mediation lets the association educate the other side on why rules were developed and why they need to be enforced. At the same time, the other side can explain why the rule is inapplicable or unfair. Both sides can explore options that still allow the association to enforce the rules. With the assistance of a neutral mediator, both sides have an equal opportunity to speak, listen, and control the dispute’s resolution. When both sides understand the other’s view, they can collaborate to resolve the dispute, rather than merely compromise.

CHOOSING A MEDIATOR

Choosing the right mediator can mean success or failure in resolving the dispute. Select a mediator that both sides feel comfortable with. Ask about the potential mediator’s experience, personality, and style–because mediation styles vary. Some mediators help the parties communicate; others give advice about what a jury will award. Some mediators use meetings with one side, called private caucuses, to talk more candidly about issues. Others prefer that the parties always confront each other.

Above all, the mediator must be neutral. He or she cannot advocate one party’s side and still have credibility with the other. Each side must respect the mediator. Mediators for community association disputes need to understand how associations work. They also must be knowledgeable about the particulars of the case.

To find an appropriate mediator, contact people you know who have mediated their disputes. Excellent mediators can also be found through mediator referral panels, such as the local bar association or superior courts. (See the list of sources on this page.)

PREPARATION IS KEY

At a mediation, preparation equals knowledge and power. The party that thoroughly analyzes the dispute and develops a flexible negotiation strategy will feel stronger, smarter, and more in control. The following nine tips will help you analyze the dispute, develop a negotiation strategy, and maximize your success:

1. Define and analyze the issues. Anticipate what the other side will say and be prepared to discuss the issues thoroughly from both points of view.

2. Identify the needs and interests of both sides, including their perception of the facts and their ideas, attitudes, motives, and values.

3. Identify the strengths and weaknesses of both parties’ case. For example, has the association arbitrarily enforced rules in the past?

4. Define alternatives that both parties could accept.

5. Determine how a jury or arbitrator would view the case. Research similar cases that have gone to trial.

6. Define alternatives for both sides if negotiations fail and assess the short-term and long-term consequences–for example, the time and costs associated with litigation.

7. Prepare exhibits and gather documents, photographs, maps, or other information that will influence the other side and demonstrate your point of view.

8. Ask experts to attend the mediation and explain technical issues.

9. Prepare a mediation brief and give it to both the mediator and the other side. (A mediation brief is a written statement outlining your facts and arguments.) Educate the other side on your point of view and discuss the association’s proposals for mediating the dispute.

MEETING WITH THE WIZARD

Mediations typically start with a joint session where all parties, attorneys, and experts meet in a conference room. The mediator asks everyone in the room to introduce themselves, then informs them that the mediation is confidential. Statements made by anyone at the mediation, including the mediator, cannot be used in a subsequent civil action. This confidentiality is protected by statute; many mediators circulate an agreement for the participants to sign.

The mediator usually describes the mediation process that he or she recommends for the particular dispute. Typically, each side gives a presentation, which is followed by an opportunity for discussion and negotiation. Remember–the mediator cannot force people to remain in the mediation or to follow a certain procedure. The process is in the hands of the two parties. If you believe meeting privately with experts would be productive, say so. By making suggestions you can more effectively utilize the mediator and resolve the outstanding issues. The mediator will then give everyone an opportunity to give a presentation.

MAXIMIZING EFFECTIVENESS

The opening statement or presentation is your opportunity to explain the facts from your viewpoint–and an opportunity to hear the other party’s view. This is the time to identify areas of mutual understanding and outstanding issues that need to be resolved. Some tips for positive persuasion in your presentation are:

* Know your facts and present them in a manner that is confident, yet empathetic

* Be flexible; adjust to changing conditions, such as emotional outbursts or new proposals

* Talk on a level the other party can understand

* Talk to the decision maker, not a staff person or spouse who is merely there to transmit information

* Add credibility to your arguments by referring to third parties, such as experts or associations that have suffered similar problems and successfully resolved their dispute

* Show the other side how you can solve the problem fairly

* Listen to the other side, observe, and make notes

* Identify undisclosed motivational factors–for example, an owner who is selling his unit yet doesn’t tell anyone–and why they are not sharing the information

* Identify the dynamics of the players on the other side

* Identify factual distinctions between the opposing sides and emotional concerns that could affect the dispute’s resolution–for example, would an apology help settle the dispute?

* Identify nonverbal cues, such as crossed arms and legs

Your presentation in the opening session and the discussion that follows are the best opportunities to identify the parties’ interests, define acceptable parameters for an agreement, and reach a consensus for resolving the problem. If discussions and negotiations reach an impasse, consider moving to separate private caucuses or meetings with the mediator. Some cases are resolved without a private caucus. Caucuses, however, can break impasses. The mediator may obtain additional information about the dispute–including information one side does not want to share. Caucuses are also an opportunity for the mediator to act as devil’s advocate. The mediator can explore strategies, pinpoint arguments to support positions, and identify alternative settlement possibilities. Often the mediator returns to the basic issues that both parties addressed when preparing for the mediation. What are the needs and interests of both sides? What are the strengths and weaknesses of their cases? What are alternatives that both sides would find acceptable?

GET IT IN WRITING

After reaching a resolution, the mediator drafts a memorandum of agreement, which outlines the agreement’s general parameters. All parties should sign the agreement before leaving. A formal settlement can be drafted later to finalize the legal terms of the settlement.

Mediation allows anyone involved in a dispute, whether it’s the board of directors or residents, to productively discuss facts and feelings with the assistance of a neutral third party. It allows people to learn from each other, to suggest fair proposals, and to negotiate a resolution that addresses the needs and interests of all. It allows associations to resolve conflicts efficiently, without the cost, frustration, and time of litigation.

Mediation Success Stories

Mediation can successfully resolve disputes. As a mediator and attorney, I’ve helped numerous community associations to settle disputes without litigation. Here are three of those success stories.

* A homeowner association was entangled in a construction defect dispute with its builder. The association’s attorneys and architectural and construction experts estimated the defects would cost $6 million to repair. At the first mediation session, more than 20 parties attended, including the builder, the architect, and various engineers and subcontractors, each with their attorneys, experts, and insurance representatives. After several sessions, the parties agreed on a repair proposal and the cost to repair the defects. They also agreed on the amounts that each party could pay. The cost of discussing the issues and the mediating the dispute was far less than the cost of 75 depositions and two months of trial.

* A small homeowner association became involved in a dispute when it removed two rooftop balconies for repairs and maintenance. Because of the balconies’ position, certain owners would not allow them to be replaced, fearing construction noise and damage to the roofs of their units. The board and the residents agreed to mediate–and the mediation was charged with emotion. Ultimately, the association replaced the balconies with an agreement to limit noise and not damage the roof. They also agreed to maintenance plans that satisfied all of the homeowners.

* At another mediation, several members of a homeowner association charged that one of the officers had misappropriated money to enhance his own unit. They also claimed the association had not performed necessary maintenance. In an emotional half-day mediation–complete with yelling and accusations–the association agreed to an audit and a binding agreement to provide the required maintenance.

Common Ground, May/June 1997

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