Early Mediation Can Defuse Disputes Before They Get Nasty

Last month's issue of Northwest Lawyer magazine contained an article that extolled the benefits of early mediation. The article's author (a retired attorney) began by revealing that he had recently been sued and that it had been a miserable experience.  He went on to note that early mediation can help people avoid litigation, which can save them much time and money and spare them a great deal of emotional distress.  The article's author also pointed out that early mediation can prevent the destruction of personal relationships that often accompanies litigation.

Parties involved in a dispute should seriously consider engaging in mediation before they file lawsuits.  I am available to mediate disputes between condominium and homeowners associations, disputes between such associations and their owners, and disputes between two owners within such associations.   

The Importance of Listening

Effective mediators know how to listen.  This sounds deceptively simple, but listening seems to be becoming a bit of a lost art.  Mediators (who are often attorneys) have a tendency to speak too soon and too much.  They make mediations about them rather than the parties.  It is often tempting for mediators to cut the parties short and direct them to what they deem to be the best outcome.  This is a mistake. 

The parties initially need to be given sufficient time to tell their stories and explain their positions without interruption.  The best mediators allow parties to do this and then ask open-ended questions that prompt them to elaborate on those stories and react to the issues raised by the other party.  Through this process, mediators can obtain the information necessary to achieve durable settlements that take both sides' interests into account.

If you are seeking to mediate a condominium-related dispute, then you should select a mediator who understands that silence can be golden. 

Interview Illuminates Mediation's Benefits and Challenges

I recently read an insightful interview of Seattle mediator and arbitrator Stew Cogan.  He emphasized at the outset that mediation is a fast process that can be concluded in a matter of weeks.  This helps to keep associated costs to a minimum.   Mr. Cogan went on to note that mediation is particularly difficult when the parties have been involved with each other for a long period of time and bring a large amount of baggage with them to the mediation.  In those situations, the mediator and the parties must consider more than the merits of the legal dispute.  He concluded by pointing out that the essence of mediation is providing parties with an optimal opportunity to solve their own problems.  The full interview can be reviewed here.

Parties in conflict should seek out mediators who combine knowledge of the relevant legal area and talent for helping people work out their problems.  If you are involved in a dispute with a condominium or homeowners association or an owner in such an association, then you should consider contacting my office to discuss mediation of that dispute. 

Spreading the Condo Mediation Message

I had the privilege to appear on local radio show Brashenomics this month.  During my part of the show, I discussed the mediation process and explained why condominium and homeowners associations and their owners should use mediation more often to resolve conflicts.  Here is a link to a video of my part of the show: http://bit.ly/18EiixT

The Elusive Goal of Rapport

The French word rapporter entered the English language as rapport in the 1660's.  Rapporter means to “fetch”, “yield” or “bring back”.  Rapport, on the other hand, is defined as “a sympathetic or harmonious relationship or state of mutual understanding”.  

Mediation seeks to replace strife with rapport.  Restoration of the relationship between the parties to the greatest extent possible is its primary goal.  When rapport is created, communication flourishes and mutually acceptable solutions are found to common problems.

As a mediator, I make it a priority to ensure that each party fully considers and understands the other party's position and motivation.  Attempting to see a dispute from the other side's point of view often leads to the establishment of rapport.  Concessions and settlements are then much more likely to occur.   

Announcing My New Mediation Practice

Community associations and owners rarely engage in mediation right now.  If direct dialogue does not solve a problem, then one or both of the parties typically hire an attorney, often at great cost.  Mediation offers a third way to resolve difficult disputes that is quicker and cheaper than litigation.  Given its benefits, the use of mediation to resolve disputes between community associations and owners will likely become increasingly common in the years ahead.

Over the last eight years, I have provided legal representation to condominium and homeowners associations and owners within such associations.  During the course of that work, I have helped numerous parties in conflict communicate with each other and resolve their disputes through negotiation.  However, I have always acted as an advocate for one side.  This is about to change.  I have decided to begin offering mediation services to community associations and owners. I look forward to helping associations and owners settle their differences in this new role.

Before Litigation, Condo Owners and Associations Should Consider Mediation

In his forward to a 2000 collection of case studies compiled by the Carnegie Commission on Preventing Deadly Conflict (CCPDC), former Secretary of State Cyrus R. Vance called for an international effort to improve the existing methods of preventing and resolving deadly conflict. While conflicts within condominium and homeowners associations involve lower stakes than the types of situations that Mr. Vance has faced (he played a major role in the negotiations to end apartheid in South Africa and end the Bosnian War), they can still get plenty ugly once litigation rears its head.  Fortunately, community associations and owners with opposing interests can often successfully mediate their disputes, even if there is substantial bad blood between them.  Mediation is particularly appropriate in that context because it seeks to reconcile parties and rebuild a sense of connection between them.  After all, everyone still has to live and work together once the dogs of war have been chased away.

Disputes between community associations and owners can escalate rapidly.  Consider this hypothetical situation: 

A condominium unit owner stores items on a second-floor balcony in clear violation of the community’s rules.  The board sends a violation notice to the unit indicating that daily fines will be imposed if the items are not removed by a specified date.  When the deadline comes and goes without the items being removed, the board begins to charge daily fines.  The owner arrives home from an extended trip to find that $3,000.00 in fines has been imposed.  The owner removes the items from the balcony, but the board is not willing to remove any of the fines.  Both sides come away from a meeting regarding the fines convinced that their position is correct.  The board sends the owner a letter stating that it will sue her if she does not pay the fines. 

Absent the intervention of a third party, the association and the owner in this hypothetical will likely spend many months and thousands of dollars engaged in litigation.  Regardless of the outcome in court, the parties will almost certainly regard each other with hostility from that point forward, which will probably lead to more disagreements.  This unfortunate outcome is inevitable in some cases, but mediation should be seriously considered before litigation is pursued.     

Mediation is an informal process in which two parties hire a neutral third party to help them resolve a dispute.  A mediator does not typically express views on the merits of the parties’ positions.  A mediator’s primary goal is to help the parties reach agreement by identifying issues, exploring possible basis for agreement, describing the consequences of not settling, and encouraging each party to consider the interests of the other party.  Both sides are encouraged to compromise.  Mediation can usually resolve disputes faster and cheaper than litigation, and it has the potential to make future disputes less likely by restoring the parties’ long-term relationship.

In his forward to the CCPDC’s report, Mr. Vance concedes that it is difficult to negotiate with people one dislikes.  He writes that as “much as I might have been repelled by the acts of many of the leaders with whom I negotiated, they were the only men empowered to make peace, and peace in the end was the most important goal.” Community associations and owners likewise may not always hold one another in high regard, but this does not preclude successful mediation of their disputes.       

When reflecting on his involvement in the negotiations to transfer power from the white minority to the black majority leader in the 1990s, Mr. Vance describes a negotiation in which South Africans “sought out areas of agreement with the other side and worked together on a process of power sharing and reconciliation.”  He praises those who showed “leadership...[which]...allowed for the truth of the apartheid years to emerge in a way that encouraged catharsis and honesty without vengeance.”  Seeking common ground, facilitating open communication, and foregoing punitive measures were vital because the citizens of South Africa still had to live together in close proximity after the transfer of power took place.  Mediation can similarly help community associations and owners end disputes in a way that will sow the seeds of future peace between neighbors.        

Conflict between community associations and owners will happen from time to time, and occasionally litigation is necessary to resolve it.  However, mediation often offers a better path.  By agreeing to negotiate solutions with the assistance of a mediator, associations and owners can in many instances reach settlements that reflect the interests of both sides and, as a result, produce real and lasting reconciliation.