Mediation

Mediation is a form of alternative dispute resolution.  You may have heard the term “ADR” and wondered what that meant.  That’s what it means, resolution by a process alternative to litigation.

You do not even need an attorney to engage in mediation.  Most counties have services that are vying for funds that have to be provided by the local courts by law.  The donations from the courts come from court fees.  The courts in California, and many other states as well, are looking for ways to divert resolution of disputes to means other than tying up the courts.  Judges are busy…and expensive.

Homeowner association disputes are especially  for resolution by means alternative to litigation.  The problem of litigation is that it polarizes people.  Using a system that polarizes neighbors does not lead to harmony in the neighborhood.  Certainly, owners and associations have disputes the need to be resolved, some much more serious than others.  Some involve dollars and some involve “sense”, or lack of it.  People are often so wrapped up in their emotions when dealing with neighbor to neighbor disputes that they cannot see clearly.  Boards of directors do not like to get involved in a neighbor to neighbor dispute, although they are often asked to do so. If there is a violation of the governing documents occurring, they often have to.

  I have had a considerable amount of mediation training and experience.  In fact, those skills have come in handy to deal with boards that are infighting, or boards that are fighting with members, or at hearings or association meetings, or with contractors and parties providing services to associations and I often find myself conducting a mediation session even if no one else in the room knows it.

  You do not need to hire an attorney to go to mediation.  You do, however, need a good mediator.  If the mediator has no experience with homeowner association issues, you will be disappointed, whether you are the association board or whether you are the homeowner or other party.  You need assistance when you’re trying to resolve something by alternative dispute resolution from someone who is intimately familiar with the goings-on of associations and the goings-on of neighbors in them, and of contractors, employees, managers and others.  You need someone who understands and knows the law regulating the associations and the owners.  You need someone familiar with the rights and responsibilities of both parties, and it is especially helpful to work with someone who has had considerable experience solving association disputes, both in and out of the courts.

  I do not do litigation anymore. It is hard, I should say very hard, to satisfy anyone’s interest in court that is involved in a homeowner association dispute is some kind. You really do not get the “voice” you so pine for and often you do not even get to tell the “whole” story. Needs other than dollars are rarely met in court.  

Mediation is a very empowering experience. That’s the beauty of it. That is the glory of it. You become part of the solution rather than remaining part of the problem.

I invite you to try mediation.  Mediation is a process whereby a facilitator attempts to help parties that are in a dispute understands fully the nature of the processes involved in resolving that disputes, and assisting the parties in having their say, and participating in the resolution.  It is a very empowering process.  Very few people who go to court to litigate matters, or end up defending themselves in litigation get to participate in the resolution of the problem.  Very few actually get to “have their say” or get what is bugging them off their chest in the courtroom. Testimony is limited to what the lawyers want the judge or jury to hear.  Mediation is a process that can help satisfy the ego, the needs, and the interests of the parties.  Although I suggest the parties leave their egos at the door, there are ways to craft resolutions to problems that don’t end up embarrassing one side or the other, but you may not have the key do figuring those solutions out on your own. It is very difficult for a Board of Directors to figure out what to do when attorneys are telling them they have to enforce the CCR’s, using the “use it or lose it” philosophy.  It is very difficult for neighbors to communicate with their neighbors about issues without letting emotions get in the way.  Believe it — for every problem, there is a solution, but searching for it in a court of law can lead to bankruptcy and/or leave you frustrated as all get out.

Both sides can save a considerable amount of money by attempting to seek resolution of the dispute with a knowledgeable mediator prior to undergoing the expense of paying an attorney to get involved.  While I not suggesting that you avoid seeking a legal opinion from a knowledgeable resource, I have seen some terrible situations where clients get the life and a considerable number of dollars sucked out of them before they come to the conclusion that it’s not worth the money or time any more. I actually was involved in a case involving barking and threatening dogs (on the Association side) where the owner retained an attorney to represent them, the attorney refused to participate in mediation and instead filed motion after motion until the owners money had run out. The owner stopped paying and left the state. There were no more motions and it came time for trial. The attorney tried to bow out of the case and get an order for dismissal at that time and the Judge made him appear at trial without his client. I hate to suggest that this kind of thing occurs in my profession but some attorneys are driven by the quest for billable hours. To be fair, of course, I have also seen many situations as well where attorneys see the value of the meditative process and act very respectfully and herd their clients gently toward alternative dispute resolutions, rather then stirring the pot to make sure the friction does not stop prematurely (like before that new Mercedes is in hand).  Sometimes attorneys just get frustrated too, because their clients are making decisions based on emotions and ego, rather than on what makes sense in a given situation and so they bring them to mediation seeking assistance in resolving a complicated emotionally charged issue.  

I have been in many, many mediations, either as mediator or as an advocate for a party in a mediation.  Even if the mediator is not very good, an attorney with good training and experience in mediation practices coming with a party to mediation can enhance the mediation experience greatly.  There are some very good mediators out there, and some very poor mediators.  A mediator is not someone who imposes their values and perspectives in a heavy-handed way.  They are a neutral party that can perhaps see things even more clearly than the clients and the attorneys involved in heavy duty advocacy. And, a mediator experienced in a particular area of the law can offer insight, guidance, and a reality check for the parties.

Do your research to find a good mediator near you if you are in need of mediation services.