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Facilitative Mediation and Other Methods to Resolve Disputes Outside Court
Outline from speech: FACILITATIVE MEDIATION AND OTHER METHODS TO RESOLVE DISPUTES OUTSIDE COURT
  • How do we keep disagreements or disputes from getting out of hand?
    • Clear and reasonable restrictions and rules.
    • Good communication of those restrictions and rules to the co-owners.
    • Easy to understand compilation or synopsis of those restrictions and rules
    • Newsletter reminders
    • Equal enforcement of those restrictions and rules.
    • Prompt but polite communication of alleged violations.
    • Invite the co-owner alleged to be in violation to discuss the issue with the Board.
    • Attempt to understand the position or explanation of the co-owner and try to work within those parameters, recognizing that you are a community and that it would be preferable to create an atmosphere of cooperation and mutual support.
  • Alternative dispute resolution methods.
    • Arbitration.
    • Some condominium documents require it, others make it dependent upon the agreement of the parties
      • Typically handle under the Rules of the American Arbitration Association
      • Typically proceeds much quicker than litigation
      • The rules of evidence are loosely applied and the hearings are substantially less formal than a trial
      • The parties usually incur less costs and attorneys’ fees
    • Facilitative Mediation.
      • The parties would agree upon a disinterested third party
      • Both parties must have trust, confidence and respect in the mediator
      • While the process is typically non-binding, both parties should be willing to follow the advice of the mediator
      • The costs and attorneys’ fees will be substantially less than litigation
      • The process is very informal
      • The parties should agree that any statements or admissions made during mediation are inadmissible in any court, in the event that mediation does not resolve the dispute and the parties are required to litigate
      • Many agencies and even some communities and municipal governments are offering this service, some times free of charge
  • When SHOULD the Associations go to court?
    • In almost every instance, informal attempts should be made to resolve the dispute.
    • Instances where litigation is necessary:
    • Foreclosure of assessment Liens if payment plans cannot be agreed upon
    • Equitable relief to restrain certain conduct.  Mediators, arbitrators and other dispute resolvers do not have equitable authority, and when such relief is necessary, litigation is required