It is an unavoidable reality that wherever there are people living in a community together, there will be some degree of conflict. Unfortunately, we can’t change the fact that some homeowners will inevitably run afoul of the association or one another, but we do have options on how to handle the conflict. Associations have many tools for resolving disputes including the power to assess fines, file liens and file lawsuits. However, there may be circumstances when the best option is to try to come to a mutually agreeable solution which will resolve the problem but maintain a sense of community.
Alternative Dispute Resolution (commonly referred to as ADR) is precisely what the name implies: an alternative means to resolve disputes. There are two main types of ADR, mediation and arbitration. This article will introduce the basics of both mediation and arbitration.
Mediation
The distinguishing feature of mediation is that it is designed to help the opposing parties come to their own solution. A mediator serves to facilitate discussion between the opposing parties and may suggest possible solutions, but the mediator does not make the final decision.
The process of mediation is very flexible, however the most common method of mediating a dispute is to bring the parties together and give each an opportunity to give their side of the dispute to the other person. The parties then separate and meet with the mediator individually to give them an opportunity to disclose information they may not want the other party to know, such as what compromises they are willing to make. The mediator may then either bring the parties back together to discuss possible solutions or shuttle back and forth between the parties until a solution is reached. Once a solution is reached, it should be put in writing and both parties should sign the agreement.
Mediation allows the parties to find creative and flexible solutions as well as giving them the opportunity to feel as though their issues have been addressed. In many cases, simply feeling as though you’ve been heard will go a long way to resolving ill will within the community. When the opposing parties have to continue to find a way to live next door to one another, a non-adversarial process like mediation may be the best way to preserve community relations.
Arbitration
The primary difference between mediation and arbitration is that in arbitration a third party listens to both sides and issues a decision rather than assisting the parties in coming to the solution themselves. In this way, arbitration is similar to a simplified trial. Arbitration is generally used as an inexpensive alternative to trial; however it may not always be appropriate in the homeowner association context.
Associations are frequently able to take advantage of the county court system which is already a simplified and less expensive means of trying a case, so unless the case involves an unusually complicated matter, it is unlikely that arbitration is going to be any less expensive than actually going to trial.
Finally, unlike a trial, if a party is unhappy with the outcome of arbitration, an arbitrator’s decision usually can’t be appealed. In mediation, a party can either negotiate a solution he agrees with or he can just walk away from the table.
Orten & Hindman attorneys are trained mediators. Please contact us If you are in need of an experienced mediator.
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