An excellent article found in Common Ground Magazine – Avoid the fight, turn the conflict in to opportunity
Peace, Love, and Mediation
©2016 Community Associations Institute
IMAGINE A COMMUNITY where members live in harmony and the board functions smoothly.
Imagine they know that confrontational, conflict-laden living creates emotional stress and a dysfunctional association. Sure, they have their occasional issues, like all those who live in communities sharing property and common ground do, but imagine they make alternative dispute resolution the first option and lawsuits largely a thing of the past. Imagine they mediate instead of litigate. It’s easy if you try.
Associations should be running to the negotiating table instead of the courthouse every time there’s a dispute. Mediation has an 80–90 percent success rate because it’s collaborative, confidential, and allows community association members to determine their own solutions to their disputes. It’s also significantly cheaper than litigation and much faster than protracted lawsuits.
During mediation, a professional, neutral, third party facilitates and negotiates a resolution that is acceptable to all. The mediator—who is trained to deal with issues like intense emotions, lack of trust, and communication failures—helps the parties find common ground and creative solutions.
Mediators usually ask the parties to submit brief, written summaries of the nature of the dispute. Then, the mediator may conduct individual discussions with each party followed by a group discussion. The decision-making authority rests with the parties. An agreed-upon resolution is typically recorded in a written settlement, which becomes an enforceable contract. If a party fails to hold up his or her end of the bargain, a court can compel compliance.
Mediation can be particularly effective in communities because of the very nature of the association model. Community association members have common goals and common ground. They all want peace where they live, a reliable process to maintain the community, and the highest market value for their homes. The more association leaders help their residents connect, the more successful they’ll be at resolving conflict. In fact, the failure to connect or to communicate often is cited as the leading contributor to association conflict.
RESOLVING TO MEDIATE
Many types of disputes in community associations can be resolved through mediation. These are just some examples.
Covenants enforcement issues. I’ve seen mediation resolve everything from hanging Batman-&-Robin sheets in a window to turning a garage into a discotheque, from painting homes unapproved colors to allowing pets to run off leash.
Board member battles. When a board vice president alleged that the treasurer had misappropriated money to enhance her own unit and hadn’t allocated money properly for necessary maintenance in the community, mediation was successful. In mediation, the vice president and treasurer agreed to an audit and to establish a maintenance schedule spreadsheet.
Unit owner vs. board. A unit owner sued a condominium board, alleging negligence and breach of fiduciary duty. The unit owner sought a $1,500 reimbursement for his insurance deductibles, which he had paid two consecutive years, due to significant water damage to his unit. The water resulted from ice dams that formed because the board neither repaired a failing roof nor removed massive amounts of snow from the roof after particularly brutal New England storms. Instead of continuing with the litigation, the board and unit owner were able to resolve their issues successfully in mediation.
Board vs. unit owner. Mediation was fruitful when a unit owner in a small community denied access to the association’s maintenance personnel through her fifth-floor unit balcony to repair and replace rotting boards. During mediation, the unit owner agreed to grant access to maintenance workers if she could have her brother present while work was being done.
Unit owner vs. unit owner. Issues involving pets, parking, loud music, secondhand smoke, and many other nuisance complaints often are resolved through mediation.
Board vs. management company. Mediation resolved a disagreement over terms of a management contract and how the company processed common assessments.
Association vs. developer. In a case where an association was entangled in a construction dispute with the developer, a successful repair proposal was reached with the help of the builder, architect, various engineers and subcontractors, attorneys, experts, and insurance representatives. The cost of resolving the issue through mediation was far less than the cost of numerous depositions and a lengthy trial.
Ongoing litigation. It’s in the best interests of associations to resolve disputes before they turn into costly litigation. But even when a lawsuit has been filed, mediating early—when the costs and stakes are lower—creates an incentive to settle. A skilled mediator experienced in community association law can play a key role before disputes head to trial.
Mediation is the only dispute resolution process that strengthens and preserves relationships, thus fostering a stronger sense of community. Through mediation, an association can avoid the fight and turn conflict into opportunity.
Kathleen “Kat” Marquis is a practicing attorney and mediator specializing in condominium law in New England. firstname.lastname@example.org.