Making the most of mandatory mediation
Sections 132 and 134(2) of our Condominium Act make it mandatory for condo corporations and unit owners to mediate many types of disputes before proceeding to arbitration or commencing litigation. Among the disputes that must be mediated are disagreements over the declaration, by-laws or rules.
Despite the fact that mediation is mandatory in declaration, by-law and rule cases, this step is often by-passed where the parties don't agree on the selection of the mediator, as per section 132(1)(b) of the Condo Act. This is a shame since the case will then proceed directly to arbitration and, in some instances, to court. The cost, complexity and level of animosity between the parties all increase sharply as the dispute progresses through the various stages. Early resolution is almost always preferable.
In cases where mediation actually does take place, the likelihood of the dispute being resolved successfully depends heavily on a number of factors such as the skill of the mediator and counsel, the preparation and goodwill of the parties and, quite importantly, the ability of the parties to really listen to each other. Without proper preparation and anticipation of the likely concerns of the opposing party, mediation is often doomed to fail.
In a recent posting on the California HOA & Law Blog, attorney Beth Grimm shares her views on why mediation is the perfect way to solve condo disputes, why mediation often fails and what can be done to improve the odds of succeeding. Her comments are worth reading since they are perfectly applicable to condo disputes north of the 49th parallel.
Because mediation is mandatory for many condo disputes here in Ontario and since mediation represents an excellent opportunity to resolve disputes and heal divisions quickly and economically, board members, property managers and unit owners must equip themselves with the knowledge and tools to come to the mediation table to solve disputes.
Stay tuned in the coming weeks for more tips and insight into making the most of mediation.
Mediation article by Grimm was refreshingly candid. She captured the framework for the mediative process and illuminated a number of the inherent convolutions and pitfalls and what can be done to avoid them.
Lavonne McCumber Eals B.A., M.E.S.
A Place for Mediation
I have to wonder about some kinds of mediation. Let's say my declaration stipulates that a resident may only have two pets (two dogs, two cats, cat and dog, etc). The person moves in with three dogs (not against city bylaws, but contrary to the declaration). What is the point of mediation on this? There is nothing to mediate... the board can't "negotiate" with the terms of the declaration. The plain fact is that the resident has to comply with the declaration. Isn't mediation just a waste of time at that point?
Good comment, Marc. Thanks.
A mediator might give a more detailed comment about how mediation can be useful even in what seems like black and white cases.
My own view is that mediation is essential in a pet case like you described because, at the very least, it provides an opportunity to give the offending unit owner fair warning that they will be $10K-40K poorer if they continue fighting and lose. While we give those kinds of warnings in our letters, giving that warning face-to-face sometimes drives the point home more effectively or, if it doesn't, we can sleep soundly knowing that the owner was adequately warned about the financial ruin they have brought upon themselves.
The mediation process is often bypassed by unscrupulous condo companies that wish to get rid of owners who question where the money is going/conflicts of interest. I had a situation in a complex where a board member was also the "caretaker" of the building and writing herself ridiculous cheques. I expressed concerns about this and she falsely billed me for having a "garage sale" on the premises. I took the board to court and won back my money , several thousand dollars. But the whole ordeal was a pain in the you know where! There never was a garage sale! and this was completely made up to harass me.