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July 5, 2009
Why Do So Many HOA and Condo Association Mediations Fail?
Mediation seems to me the perfect way to resolve HOA and Condo Association disputes, whether the parties are the HOA and an owner, or two or more owners, or the Condo Association and a vendor, or all of the above. The forum provides a perfect opportunity for all parties to keep control of the dispute and where it goes. It is the perfect opportunity to "be heard". It is the perfect opportunity to craft a creative resolution, if creativity is needed to achieve a reasonable resolution of the dispute.
So if it's so perfect, then why does it fail?
Here are some of the reasons.
Many people are completely unreaslistic about what is within the realm of possibility. They commonly misconceive that they have a better chance of "getting a judge to listen" to their litany of issues and "weigh in" on their side. All I can say is: "Good luck with that!"
Sometimes its the mediator. They know not what they are doing. Mediators short on experience with HOA and Condo problems commonly do better with disputes revolving around money. Who owes whom what? If there are any emotions involved, forget it. And if the mediator has little or no regard for what the disputants might need to get onto the table, or what amount of spouting off is needed to get them pliable enough to get real, or what amount of "massaging" might be necessary to get the parties talking to each other, or on the contrary, when the "spouting off" is beginning to carry over into the arena of distancing the parties further, then hours can be wasted.
If the parties to the dispute are blocked by their attending advocates, such as when lawyers will not let their clients talk at all in the mediation, the process can be stifled.
If the parties come kicking and screaming to the proceeding, such as when a judge orders them to get themselves to mediation before he or she will consider a matter further, or when parties come just to satisfy the statute that is the precursor to litigation, it wastes everyone's time.
And last, but not least, a mediation may be over even before it begins if neither the mediator nor the HOA board or advocate has any sensitivity to how put off an owner or owners will be - without any warning or preamble - coming into a room where there are perhaps 5 or more board members, the HOA or Condo manager, and the association's attorney all trying to crowd onto one side of the table - or perhaps even worse, crowding in around the one remaining chair. The owner(s) in that scenario are already building resistance, feeling outnumbered and overwhelmed.
How are the above problems solved because if they are ... that will take the parties a long ways toward resolution. Let me count the ways ...
1. Open-mindedness, experience, and an educated mediator (to the process).
2. Open-mindedness, experience, and an experienced (to the process) advocate who can leave their ego at the door.
3. Good communication between the Board and its advocate, and a willingness to "participate" and not hide behind the attorney.
4. A willingness on the part of the owner or party that is in the minority in number to "participate" and not flee.
5. And last but not least, the insight of a good mediator to set out the processes ahead of time and explain what the parties might perceive as "lopsidedness". For example, simply notifying an owner that the board will be present because any decisions require majority action explains why the table is lopsided. Some owners are put off because only the manager shows, and they want to address the board. Being up front about who will be there any why is very helpful. Inviting the owner to bring a legal or other representative or someone for moral support is not in my book a negative.
And one last thing I would say (from experience) is watch out for "retired judges" passing themselves off as mediators. While there are some very good ones out there, who are able to listen instead of "direct" the "participants" to the resoluton he or she (the retired judge) believes should occur, there are also those who exude testosterone when it comes to ego and power (men and women judges alike). I have had training with people like that, and been in mediations with people like that.
Strong advocacy and positioning without regard to reality and openness to discussing creative resolutons can get in the way at a mediation because that process is in the best scenario a forum that presents an opportunity for the parties to come to their own resolution, with the help of a good facilitator who knows what they are doing, It is good to ask for references to people in this industry or other HOA or Condo boards or owners that have been in successful mediations, and call the references.
And try it ... you could be very pleasantly surprised!
Posted by Beth Grimm at July 5, 2009 6:19 PM