Keep condo conflict out of court: Mediate
By KAT MARQUIS
February 03. 2017 12:52AM
No one wants strife in their life. We especially want peace where we live. Conflict may be inevitable (in the proximity of community association living), but combat is optional. Disputes in community associations are disagreements among people.
Disagreements can arise among homeowners, between individual homeowners and their community associations, or between associations and others. The way these conflicts are resolved can make all the difference to the success of the community.
In the condominium arena, threatened lawsuits and racing to the courthouse are not always the answer. Mediation is an effective, successful way to keep condominium conflict out of court. It focuses on the fix, not the fight.
Almost all reasonable people know that litigation is damaging to both parties. However strong your arguments or case may appear to be, litigation is at best uncertain. It is expensive and very time consuming. It is stressful and all-absorbing. It can cause reputational damage to either or both parties.
Even a “win” can be a pyrrhic victory if one side does not achieve the desired outcome or the “loser” files for bankruptcy or the association gets bad publicity or a bad reputation and substantial time and legal costs are incurred.
Condominium disputes involve noise, nuisances, pets, parking, smoking, rule violations, improper modification of units, warring factions among trustees or board members, and the list goes on. A community is made of up of people, and people do not always agree.
A condominium association must attract buyers of units, while enforcing rules and regulations that are based on conformity. It must balance both individual and collective rights. To be successful at this, an association must manage through grey areas. It must resolve conflict through an effective, people-centered strategy. 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, with an experienced, skilled mediator, parties to community association disputes reach a mutually satisfactory agreement in 75 percent to 90 percent of all cases.
Also, the degree of compliance is greater with mediation than with litigation, since the parties determine 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 community association disputes in a less adversarial setting than a courtroom.
Mediation preserves relationships, which is paramount when you have to live in the same community or even next door to the person with whom you disagree. It improves communication and lessens future conflict. An experienced, skilled mediator has the tools to accomplish these goals; helping associations resolve disputes positively and quickly, before they escalate.
Community associations must uphold their fiduciary duty to place the interests of the community above their own.
They must exercise the business judgment rule and protect, preserve and enhance the assets of the association. When associations keep conflict out of court and they “mediate, don’t litigate,” they take a wider, long-term view of their association framework and adopt a more values-based and community-centered approach.
By engaging the help of a professional mediator, experienced in condominium law, to facilitate and negotiate resolution of the dispute, associations can resolve disputes before resorting to a formal litigation, or end a dispute if litigation is already begun. Resolving condominium disputes out of court via processes such as mediation result in a win/win outcome for the parties and a stronger community association. Kathleen “Kat” Marquis is the principal of Bedford-based Marquis Mediation (MarquisMediation.com). She is an attorney and mediator, specializing in business, corporate and community association law in New England. Marquis can be reached at (740) 815-8687 on Facebook at Marquis Mediation or by email at Kat@MarquisMediation.com.