Oftentimes when someone mentions mediation, divorce instantly comes to mind, not how it applies to your community and how HOA mediation can benefit your condo.
Some states have adopted HOA mediation as the “go to” standard in community disputes prior to entering litigation. The State of Florida Homeowners Association Act requires presuit mediation before litigation.i Colorado’s Judicial Department Office of Dispute Resolution promotes HOA mediation, guiding parties through the system and promoting the benefits of mediation.ii These are just two examples of states that use mediation in HOA disputes.
What is HOA Mediation?
Mediation is an informal, confidential process where a neutral third party, the Mediator, assists in facilitating negotiations between disputing parties. A good mediator will know the elements of each case, applicable law and not rush to settle. Participants in mediation must have full authority and are empowered by exercising self-determination.
The mediator guides the mediation conference by explaining the rules to the parties who appear with or without legal counsel by their side. Mediation commences with opening statements when each side presents their issue(s) and what they are looking for in settlement.
Some mediators like to separate the parties following opening statements. This is referred to as “caucus.” The decision to caucus may vary dependent upon the circumstances. Some reasons to caucus may be to privately discuss strategy; venting ones feelings without offending the other side; or because the disputing parties just can’t be in the same room together.
Depending on the type of mediation the process can take a few short hours or may occur over the course of a day or two. At the conclusion of mediation you’ve either reached a settlement, partial agreement, impasse or no agreement. Mediation can be entered into voluntarily or may be court ordered. Sometimes an attorney will use mediation for discovery in a case, but not always.
5 Answers to FAQ’s: Mediation vs. Litigation
- Quicker Process: Much quicker than going to trial which can take weeks or months to prepare for, prior to your case being heard. Once your case is scheduled for trial you have no idea how long it will take to resolve.
- More affordable: When you use a mediator, you avoid the fees that accompany going to trial, which include a variety of administrative fees, attorney fees, filing fees and court costs, just to name a few.
- Confidential: HOA mediation is completely confidential. If you do go to court the mediator cannot disclose any mediation communications unless otherwise required or permitted by law or agreed upon by the parties.
- Less adversarial: The parties are coming together to negotiate and resolve their conflict. Even though the parties are in dispute, both are seeking settlement and are willing to open the lines of communication.
- Neutral third party — Alternative Dispute Resolution: A mediator is a neutral whose role is to participate with an open mind without pre-conceived ideas as to the outcome and will not make judgement. The mediator’s responsibility is to listen to both sides and help the parties understand the others position, facilitate the negotiation. The mediator guides the process and does not make the final decision as an arbitrator or Judge would. The parties are empowered to reach the final outcome.
Mediation in Your HOA
So, how does HOA mediation work? Let me count the ways… but here are just a few:
- Your neighbor’s dog just won’t stop barking when you’re trying to get some sleep and you’ve kindly asked your neighbor, on many occasions, to temper their dog, to no avail.
- Per your CC&R’s you’ve requested minutes from your Association Board meetings and your Board is dragging their heels on producing them.
- A worker from the landscaping company for the common elements fell off a ladder and wants to sue the Association for medical expenses and damages.
Think First
Before anyone shoots off a nasty letter to their neighbor who has retained an attorney threatening to sue you, consider HOA mediation. Whether required by your State’s law, voluntary, or court ordered, mediation is a less adversarial, affordable and quicker alternative to litigation and resolving your dispute. Mediation can also be the one step ahead of settling an issue with your neighbor, the person you drive by every day to and from your home, before things turn ugly.
HOS mediation is an option to saving your neighborly relationship.
A certified Florida Supreme Court Circuit Mediator and Appellate Mediator, Jill's passion is listening to and facilitating negotiations by allowing each party's voice to be heard. Her goal is to provide a voluntary resolution to issues in dispute.
- A Template for Mediation - July 28, 2016
- HOA Mediation — And Your Community - June 8, 2016
Help
Mediation can certainly be effective and save money, however I am not a fan of mandatory mediation. In my experience if both parties are unwilling to voluntarily come to mediation looking for solutions, you’ve simply added another expensive step in the way of resolution.
Mandatory mediation, as many will agree, is an oxymoron and essentially removes self-determination, a key component in mediation. While I do agree with you Tyler, sometimes attorneys use mediation as part of the discovery phase to acquire a look inside the position of the other party. In many states, and other countries such as Canada, mandatory mediation supports alleviating our court systems from backlogged dockets.
If the parties are so contentious then yes, I agree that mandatory mediation may just be another added expense. But in some cases contractual agreements may dictate mediation, arbitration or pre-suit mediation, as does the Florida Statute referred to in the article.
Something to think about: Even if the parties are unwilling, in some states over 90% of cases settle in mediation. That’s a few hundred dollars invested versus thousands of dollars spent in litigation with an outcome neither party controls.
I appreciate your comment, thank you!
Good point, Tyler. I wonder what residents of Florida think of the “presuit mediation” requirement. One potential benefit I see, is that it introduces mediation as an option to some that might not have known about it or considered it.
Maybe an “opt out” requirement would be a better policy. Parties are informed about mediation and given the option before they go to court but can opt out. What do you think?
Great post, Jill!
As a practicing attorney specializing in Community Association law and a court-certified Mediator specializing in Community Association disputes, I see first hand the benefits of MEDIATION over litigation. My motto is: “Mediate, Don’t Litigate”
Associations that used to run to the court house every time they had a community living dispute, are becoming more business minded and forward looking. They use the contemporary alternative dispute resolution (ADR) process of mediation, even if it is not mandatory in their state. Community Association Managers are key in sending disputes to mediation for resolution. They are on the front lines and call the mediator, when they see a dispute that would otherwise be headed for litigation.
Mediation has many benefits, as you pointed out– It is the only form of dispute resolution that preserves relationships, which is paramount where there is communal living- Mediation has a high success rate (80-90% of my condo and HOA disputes are effectively resolved to the parties’ mutual satisfaction)- As you mentioned,Jill, mediation saves time & money- No one wants strife in their life, so adopt the motto: “Mediate, Don’t Litigate”
Hi Kat,
Thanks so much for your feedback and input, particularly reiterating preservation of relationships in communal living. At times, when tempers flare, it can be challenging for association members, board members and property managers to recognize the importance of maintaining relationships with their neighbors. I speak to this very point (when appropriate) to parties in my mediation conferences.
As you mentioned Kat it is great to see so many CAM’s opting for mediation for all of the obvious reasons. Of course at times we find the “naturally litigious” and while so many cases settle in mediation not all do. Yet, as a Mediator, I am inclined to echo your motto “Mediate, Don’t Litigate.”
I can see the value in mediation for certain types of disputes. But I feel mediation is inappropriate where the owner or shareholder alleges that the association has violated a statute. In the example above, there is no reason for an association to withhold meeting minutes or, more importantly, financial documents. Members have a legal right to this information in Florida – although other states do not necessarily include meeting minutes among documents that must be open access.
However, a board makes motions, discusses issues, and votes on matters involving financial obligations to the association at board meetings. Every member pays for these obligations, and they should have the absolute right to timely access to meeting minutes for that purpose alone. What is there to negotiate?
The state agency or a small claims court should simply order the association to produce the required document, in response to a member’s complaint, provided the owner can prove that access hase been denied or unduly delayed. (Easy to prove) Likewise, if the association only partially honors a request for documentation, or the documents are clearly incomplete or possibly altered, a member must be able to report these instances to the appropriate authorities for further investigation – mediation is not appropriate, in my opinion. It does not serve the interests of housing consumers to attempt to mediate cases where statute violatons are at stake.
This sort of game playing only makes it easier for a rogue board or manager to cover up potential fraud, undisclosed conflicts of interest, or theft.
Good afternoon Ms. Goonan,
I agree with you that “there is no reason for the association to withhold meeting minutes….” but this does happen and I’ve mediated cases about that specific issue.
Barring election or recall disputes, among other limitations, there is specific language the Florida Statutes dictate regarding mediation. Here are the links to Florida’s Homeowners Association Act and Florida’s Condominium Act should you be interested in additional information: http://www.myfloridalicense.com/dbpr/lsc/documents/statutes/Ch720Printed.pdf
http://www.myfloridalicense.com/dbpr/lsc/documents/7182010bookletwithannot.pdf
I do appreciate your comments but respectfully disagree with your closing remark.
Mediation is not “game playing” and offers a swifter, cost effective option to dispute resolution to all parties involved. More importantly, the parties have a stronger voice throughout the mediation process than in a court of law. Rogue board members, cover-ups, conflicts or theft are pointedly some of the reasons parties request mediation and bring them to the table.
Thank you for your comments.