Mediation pitfalls
“The greatest lesson in life is to know that even fools are right sometimes.”
—Winston Churchill

“Are you really listening . . . or are you just waiting for your turn to talk?”
— R. Montgomery


At one time, when parties had a dispute they could go to a respected priest, minister, rabbi or other religious leaders who would listen to both sides and the parties would receive a quick and equitable decision.

The parties would give the "mediator" an envelope containing some cash and a bottle of vodka. The decision would be cheap, quick and binding.

In Mafia movies it is common to see the godfather mediating disputes between rival gangsters and ordinary neighbours. His decisions were just as binding.

In modern times, with the decline of religious beliefs in our society, priests and rabbis (and gangsters) have been replaced with professional grief councillors and mediators.

A professional mediator's decisions are not binding and finding impartial mediators may prove to be a challenge.

Mediation is also expense as you probably will need the services of a lawyer experienced in condo law. Modern times, modern costs. After all, who would hire a lawyer to speak for you when you went to mediation with your local rabbi or mafia don?

Condo mediators
Some mediators see condo disputes as a source of income. Therefore they sell mediation as the perfect solution for condo disputes. This is far from being so.

Is mediation equitable?
In a best case situation, either an owner or a board does not understand the Condominium Act, declaration, by-laws or rules and the mediator can explain what these documents mean and what would be the likely outcome if the parties cannot come to an agreement and they proceed to arbitration or to the courts. Owners are often stubborn and don't realize the huge costs that can be occurred if they go to arbitration or superior court with an un-winnable case.

In a worse case, either the board—or the owner—have little interest in compromising and want an unconditional victory.

Mediation can also be used by a board to waste time and exhaust the owner's patience and money.

Mediation by-law
If your condo has a Mediation and Arbitration Procedure by-law, read it carefully. Here is an outline of a by-law that was prepared for condo corporations by one prominent Toronto condo law firm.

1.	Either party of a dispute sends a written notice to the other asking for medication.
2.	This notice will include the name of a proposed mediator.
3.	If the other party does not agree with the proposed mediator, they have to submit a name of a different mediator within seven days.
4.	The two parties then have seven days to agree on a mediator.
5.	If they do not agree, then the mediator preferred by the board will be selected.
6.	Both sides will submit written arguments and supporting documentation to the mediator prior to the mediation session.
7.	The parties will agree to a place and date for the session. If they cannot agree, then the mediator will state that mediation has failed.
8.	If the mediation session does not result in a settlement, the mediator will immediately state that mediation has failed.
9.	Both sides will pay an equal share of the mediator's fees and expenses unless the mediator specifies otherwise.
10.	If mediation failed, then the dispute may be submitted to arbitration.

I am not impressed with Item # 5. This means that the condo's lawyer will be able to decide on who will be the mediator. I am not sure that any mediator picked in such a manner can be considered a neutral third party.


Mediation/Arbitration Ploys to Gather Evidence
Neighbors at War—Ward Lucas
Guest blog by Donie Vanitzian
December 11, 2015 

Five Comments on Mediation/Arbitration Ploys to Gather Evidence
One of the sharpest HOA experts in the country is LA Times Columnist Donie Vanitzian. She says the infomation below is critical for all homeowners to keep in mind.

Question:
Last year, after fruitless attempts to resolve ongoing issues with my homeowner association’s board, I agreed to attend Internal Dispute Resolution.

This year on a different issue the board asked me to attend Mediation. Directors led me to believe they wanted to resolve the problem, instructing me to bring my documents and any evidence to support my position. Each time I presented my case, they listened, asked questions, took notes and made copies of my evidence. Each time, the board brought no documents to support their position but thanked me for attending and said they’d get back to me. Each time I waited over thirty days for results and each time I “lost” so I finally decided to sue the board.

I was shocked when during litigation the association offered up my evidence, correspondence I had written to various boards and managers throughout the years including all my documents, photos and emails shared during Internal Dispute Resolution, Mediation and other meetings. They used these items against me! They already knew what my arguments would be because they had me perform a dry run during these meet and confers!

What can I do to protect myself in the future?

Answer:
Protect yourself by being better prepared. There was no advantage disclosing everything you had in advance, yet you handed all your evidence to the association for free.

Often internal dispute resolution, mediation and even arbitration are used to gather evidence against the other party. Any evidence you volunteer to the board, individual directors, association vendors, agents, managers and management companies — even to your neighbors — may be used against you in a later proceeding.

Nearly every item, paper, photograph, correspondence, email or voice message that an owner or even a renter generates is considered to have evidentiary value to the association.

Even though acting in “good faith” is a requirement in all association interactions, the term itself is nebulous. No laws prevent the association from stockpiling information on owners, then using it against them later. No laws prevent you from doing the same thing.

Even though the association may be able to obtain that same information from you during the litigation discovery process, its tools for gathering evidence voluntarily from you “before” litigation are limited. Therefore, internal dispute resolution, mediation, arbitration and any informal meetings or correspondence with owners may be a way for the board to build a case.

Civil Code section 5905 encourages associations to make use of all available local dispute resolution programs. But if the association will not willingly negotiate in good faith, it may be necessary to bring in a neutral third party or a lawyer to keep the fight fair.

Titleholders have more tools available to them without resorting to litigation, but they must be used properly—and—you must know what those tools are in order to use them. You can, and should, use written association document requests that are thorough and consistent—the key here is “consistency” and proof that your requests were received by the association. That means employing some sort of recognized tracking method on your mail to the association. Every association and management response to those requests is evidentiary in nature.

From the date you close escrow to the date you sell and move out: hold on to everything you receive—all notices, minutes, reports, sticky-notes, emails, answering machine messages, correspondence—because they are all admissible in a court of law. Any response related to your request, even a response or document saying the association has no documents, is valuable in preventing “surprise” documents from popping up later.

California’s Civil Code section 5905 says titleholders can compel an association representative to meet and confer and the association must “provide a fair, reasonable and expeditious procedure for resolving a dispute.” If the association does not have its own procedures, then California Civil Code section 5915 governs. It requires the association to produce a director to meet with titleholders at a mutually convenient time and place where both can explain their positions.

Owners are forewarned to have their act together before making contact. You must be thoroughly prepared before deciding to meet or even communicate with your homeowner association representatives. That means thoroughly anticipating potential problems and having a contingency plan in place to deal with those problems before you meet.

gather up your evidence and leave

Next time you find yourself sitting across from an association representative and they are making a demand on you for documentation or asking you questions and not providing any of their own: gather up your evidence and leave.

gather up your evidence and leave

Once in the meeting, you find that you are being bullied around or blatantly disrespected: gather up your evidence and leave.

gather up your evidence and leave

If intuitively you don’t like the way the meeting is going, no need to explain: gather up your evidence and leave.

gather up your evidence and leave

If the association’s attorney is present at the meeting and is intimidating and bashing your end of the discussion: gather up your evidence and leave. No explanation required.

Meet with experts in this area of law outside of your association for a realistic discussion of what your legal options are, with the view of avoiding litigation if possible, even if that means moving out.

Zachary Levine, a partner at Wolk & Levine, a business and intellectual property law firm, co-wrote this column. Vanitzian is an arbitrator and mediator. A prior version of this article can be found at latimes.com.


top   contents    chapter    previous    next