Community managers wear many hats in their business relationship with the associations they manage. They act as a liaison, a resource, and a consultant to help the association boards they serve to make decisions. Community managers have the tough job of being personality neutral when disgruntled unit owners call them complaining about some problem they have with another unit owner or the board. They must be diplomatic as they deal with warring factions that break out among trustees or board members. Managers are on the front lines and can see when a dispute has the potential to turn into legal action.
A Problem Solver
Many community managers inquire about a better way to resolve disputes in community association living than always launching litigation. After all, no one wants on-going conflict where they live. Managers share with me the frustration of associations they manage with regard to the amount of money, time, and aggravation spent in the court system. I ask them if the boards of the associations they manage: "Want to resolve a condominium dispute without taking months or years and costing tens of thousands of dollars?” “Do you want to determine the solution to your own disagreement?" or "Do you want to find a way to resolve disputes so that you have less strife in your life?" Then look no further. You must maximize your mediation.
What is Mediation?
What exactly is mediation, you may ask? Mediation is an informal, confidential process whereby a neutral third party attempts to facilitate and negotiate a resolution to a dispute that is acceptable to all parties involved in the dispute. Mediation is conducted by a trained mediator who acts as a guide or negotiator. The mediator helps the parties find common ground and creative solutions to facilitate a resolution that addresses the concerns, needs and interests of both parties—with the goal of a settlement that both parties can live with.
The parties themselves have a say in the outcome of their dispute. They decide what they will agree to and what they will not. They avoid the risk of losing and a judge determining the resolution. No binding result occurs unless and until an agreement is achieved and signed. The resolution is typically memorialized in a written settlement agreement which is an enforceable contract and performance can be compelled by later court action if one party does not hold up its end of the bargain.
Mediation is an art, not a science. Creative solutions can often be found. Tensions are tamed. Relationships are preserved, which is paramount when you must live together in the same community and maintain on-going relationships. A skilled mediator experienced in community association law can be critical to the success of the process.
A Powerful Tool
Mediation is a powerful form of Alternative Dispute Resolution (ADR) with many benefits. First, it is successful. Statistics show that through mediation, parties to community association disputes reach a mutually satisfactory agreement in 80% to 90% of all cases. Also, the degree of compliance is greater with mediation than with litigation, since the parties are so involved in the outcome, rather than having it imposed upon them. Mediation is faster and cheaper than litigation. It is voluntary and confidential. Mediation offers a forum for each party to share their perspective on the situation. Mediation can assist parties in working collaboratively toward a creative solution acceptable to all. It is an effective tool to resolve neighbor-to-neighbor disputes in a less adversarial setting than a courtroom.
A well-informed community manager can educate their associations about the resource and benefits of mediation for community. Community managers can inform their associations about the alternative of mediation, which can be used before or even during litigation to resolve disputes. By educating the associations about this process, the manager presents fiscally responsible options to benefit their associations.
When boards learn about dispute resolution resources, like mediation, they are better informed and better armed with tools to effectuate the most cost-effective and expedient way to act in the best interests of the association. Community managers enhance their position as a value-added service provider for Associations when they “Maximize Mediation.” In fact, those managers who use mediation, maximize the assets of an association: both financial and personal.
The Community Associations Institute (CAI) to use mediation as part of their dispute resolution policies. The declarations for some communities may require mediation, arbitration or both, for resolving at least some disputes. Even without mandatory mediation provisions, most state courts now require the parties in a lawsuit to participate in some form of mediation process before going to trial.
So the next time an association you manage is faced with a parking dispute, a pet problem, nuisance, noise, rule violations, compliance issues, warring factions among trustees or board members, or other community association disputes: Remember: “Maximize Mediation.” Now you know and can share that information. The benefits of the process are there for the benefit of your community associations. It makes good sense.
Kathleen (Kat) Marquis is a practicing attorney and mediator, specializing in condominium law in New England. She frequently conducts seminars for community managers and boards of directors/trustees. For more information visit www.marquismediation.com