The
March edition of the King County Bar Bulletin contains the following article
that I co-wrote with my paralegal Elizabeth Demong. We argue in this
article that community associations and owners should strongly consider engaging
in mediation before initiating litigation.
In
his forward to a 2000 collection of case studies compiled by the Carnegie
Commission on Preventing Deadly Conflict (CCPDC), former Secretary of State
Cyrus R. Vance called for an international effort to improve the existing methods
of preventing and resolving deadly conflict. While conflicts within condominium
and homeowners associations involve lower stakes than the types of situations
that Mr. Vance has faced (he played a major role in the negotiations to end
apartheid in South Africa and end the Bosnian War), they can still get plenty
ugly once litigation rears its head.
Fortunately, community associations and owners with opposing interests
can often successfully mediate their disputes, even if there is substantial bad
blood between them. Mediation is
particularly appropriate in that context because it seeks to reconcile parties
and rebuild a sense of connection between them.
After all, everyone still has to live and work together once the dogs of
war have been chased away.
Disputes
between community associations and owners can escalate rapidly. Consider this hypothetical situation:
A condominium
unit owner stores items on a second-floor balcony in clear violation of the
community’s rules. The board sends a
violation notice to the unit indicating that daily fines will be imposed if the
items are not removed by a specified date.
When the deadline comes and goes without the items being removed, the
board begins to charge daily fines. The
owner arrives home from an extended trip to find that $3,000.00 in fines has
been imposed. The owner removes the
items from the balcony, but the board is not willing to remove any of the
fines. Both sides come away from a
meeting regarding the fines convinced that their position is correct. The board sends the owner a letter stating
that it will sue her if she does not pay the fines.
Absent
the intervention of a third party, the association and the owner in this
hypothetical will likely spend many months and thousands of dollars engaged in
litigation. Regardless of the outcome in
court, the parties will almost certainly regard each other with hostility from
that point forward, which will probably lead to more disagreements. This unfortunate outcome is inevitable in
some cases, but mediation should be seriously considered before litigation is
pursued.
Mediation is an informal process in
which two parties hire a neutral third party to help them resolve a
dispute. A mediator does not typically
express views on the merits of the parties’ positions. A mediator’s primary goal is to help the
parties reach agreement by identifying issues, exploring possible basis for
agreement, describing the consequences of not settling, and encouraging each
party to consider the interests of the other party. Both sides are encouraged to compromise. Mediation can usually resolve disputes faster
and cheaper than litigation, and it has the potential to make future disputes
less likely by restoring the parties’ long-term relationship.
In
his forward to the CCPDC’s report, Mr. Vance concedes that it is difficult to
negotiate with people one dislikes. He
writes that as “much as I might have been repelled by the acts of many of the
leaders with whom I negotiated, they were the only men empowered to make peace,
and peace in the end was the most important goal.” Community associations and
owners likewise may not always hold one another in high regard, but this does
not preclude successful mediation of their disputes.
When reflecting on his involvement in the negotiations to transfer power from
the white minority to the black majority leader in the 1990s, Mr. Vance
describes a negotiation in which South Africans “sought out areas of agreement
with the other side and worked together on a process of power sharing and
reconciliation.” He praises those who
showed “leadership...[which]...allowed for the truth of the apartheid years to
emerge in a way that encouraged catharsis and honesty without vengeance.” Seeking common ground, facilitating open
communication, and foregoing punitive measures were vital because the citizens
of South Africa still had to live together in close proximity after the
transfer of power took place. Mediation
can similarly help community associations and owners end disputes in a way that
will sow the seeds of future peace between neighbors.
Conflict
between community associations and owners will happen from time to time, and
occasionally litigation is necessary to resolve it. However, mediation often offers a better
path. By agreeing to negotiate solutions
with the assistance of a mediator, associations and owners can in many
instances reach settlements that reflect the interests of both sides and, as a
result, produce real and lasting reconciliation.
