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November 5, 2009
Why Do Judges Tend to Make Sorry Mediators for HOA and Condo Architectural and Enforcement Cases?
Some days I pick up my coffee in the morning, got a call, and forget about everything I was planning to do, because the call triggers extreme disdain. This is one of those mornings.
Imagine yourself in a mediation for which you have plunked down several thousand dollars to cover the cost of the mediator, the mediator's administrator, and your attorney. The mediator walks in and says: "Well, I have been out to this site, and it [does/does not] look [okay/good/that bad/that terrible/that objectionable] to me."
If I were in such a mediation advocating on behalf of either party, I might suggest that the party get up and walk out, unless, of course, I was on the side with the mediator. It's clear, right? ... that the mediator has established a bias before anyone opens their mouth.
Heck, I am not saying that mediators should not see or be advised about a condition that the parties are fighting over. In case you missed it, I AM SAYING THAT IT IS MY OPINION THAT MEDIATORS SHOULD NOT INTERJECT THEIR OPINIONS UNLESS SPECIFICALLY ASKED, AND THEN IN PRIVATE CAUCUS ONLY! Because when they do, they skew the whole process. Maybe that works in other areas, but it does not allow the process to work properly in HOA and Condo disputes over rules, regulations, architectural control and restrictions cases.
Mediators who do this kind of thing and/or have insufficient experience in HOA or Condo law do not understand the damage they are doing. And, this kind of conduct indicates to me that the person is quite dangerous and is not going to be helpful in assisting the parties in finding a resolution that will work best for everyone or create the least harm for any particular party.
Very frankly, it is often worse when that person is a retired judge, because the tendency of persons who have spent years “on the bench” is that they have a hard time passing the ball off to the parties so they can settle their own differences.
So, you might ask, what experience have I had to say these things? Well, in one situation I had to ask a retired judge mediator to step out of the room after his opening remarks so I could tell him that if he did not keep his opinions to himself I would walk my clients right out the door. I have conducted many mediations and know what works. I have advocated in many mediations and know what works and know how to corral or muzzle a bad mediator. I have had various trainings at a prestigious university in California and other venues in mediation practices. In the earlier years of my attendance at the university's center for mediation the providers separated judges from the “other” people. Obviously, they recognized a completely different perspective and skill set. But what I heard later after a few annual sessions is that the judges needed to be integrated with “other people” to get the full value of mediation training because it is so different from judging cases. At any rate, at some point, the center for mediation made the decision to mix the two groups. That summer was the last summer I attended any classes. I endured an entire weekend having been put with four judges or retired judges for the breakout groups. I suppose it was because I am an attorney. I suppose the perception was that I would work well with this group being in the same field. The truth is I realized very early on it (the first breakout) that it was going to be a very long tedious weekend. What I learned, which I already had sensed anyway, was that spending any time in a closed room with people who are “hoist” on their own petard (full of testosterone and ego – men or women included) is not my cup of tea. When 4 out of 5 people are arguing and posturing to “run the mediation”, well, … need I say more? I already had a sense of this when doing litigation where I found myself sitting in a sea of fancy suits and black robes for hours on end waiting … waiting … and waiting some more. (The “waste” of time and the roomful of “billable hours” tick … tick … ticking was enough to send me looking for a better alternative). I stopped doing litigation and turned to mediation because I thought it was a much better way to resolve differences. The parties retain their dignity, their empowerment, and their ability to craft a creative resolution that is unreachable in a court of law.
Thus, perhaps you can understand why I get so perturbed when I hear of a situation where a mediator is not a mediator is not a mediator. It hurts the parties and it hurts the cause.
Since I like to offer solutions when possible, I now think a fair question for any mediator prior to sending them any money (and especially when being asked to choose from a panel of retired judges) is: “Do you plan to offer your own opinions as to who is right and who is wrong?” If the answer is anything other than this: “Not unless a party specifically asks me for my thoughts and then, only in caucus with one of the parties that has asked me to do so,” ... definitely consider calling the next person on the list.
Mediators -- I realize that some people are looking for a heavy handed decision maker, and some people want to know your opinion, but the foundation of mediation is helping the parties to come to resolution and not to impose your own resolution upon them. Be an arbitrator if you want to make the decisions for the parties!
I am not saying that making suggestions is bad, and if the mediator has ideas that may not be apparent to the parties about means to an end, then finding a way to interject those ideas or to help the parties think of the ideas themselves can be of great assistance in fulfilling the ultimate goal of resolution. However, I have heard about many situations where parties spent considerable sums of money for mediation, felt pressured into resolution and a settlement agreement, and now find that neither side wants to honor the agreement, that it has caused more harm than good, and thus, mediation gets a bad rap.
And now, I think I will get off my soapbox, and go heat up my coffee and begin my day!
Posted by Beth Grimm at November 5, 2009 10:29 AM