Published in the ADRE’s 2016 Volume 2, 2016 Newsletter. The ADRE now undertakes mediations for Planned Communities and Condos.
WHY MEDIATION? WHY NOT?
Tracey Wiltgen *Published with the Permission of the Hawaii Real Estate Board
Across the country, mediation has become the first step in addressing conflicts of all types. Consumer complaints, employee grievances, construction disputes, corporate and family matters and more, are currently worked out in mediation.
No matter how simple or complex the issues, mediation is in the forefront as a tried and true process that enables disputing parties to negotiate customized solutions quickly and privately.
It is far less formal, less intimidating and less confusing than going to court or a hearing. There are no strict rules of procedure and the people involved whether two or multiple, have the flexibility to find the best path to agreement. Additionally, the mediation process has proven to be exceptionally valuable for assisting participants with continuing relationships.
With all of its benefits and history of success, mediation is the perfect approach for addressing the myriad of conflicts that arise within condominium associations. In particular, because conflicts arising between owners and boards involve continuing relationships, mediation is a logical first step to address differences. If the participants come to the table prepared to invest the time, energy and commitment to reach a resolution, then the mediation will usually succeed.
For all of these reasons and more, the Hawai`i Revised Statutes (HRS 514B)requires mediation if a condominium owner or board of directors requests mediation of a dispute involving the interpretation or enforcement of an association’s declaration, bylaws or house rules, or a dispute involving Part VI of HRS 514B. Unfortunately, the requirement to mediate is not always viewed as a positive step. The different perspectives and responsibilities of the various players in condominium associations can lead them to believe that mediation is a “waste of time.” For example, some Property Managers and Boards feel it is their responsibility to vehemently enforce house rules and bylaws. Some owners believe they are not required to follow house rules and bylaws when they paid such a high price to purchase their unit. People often get stuck in mind-sets such as “I’m right and they’re wrong”, “I don’t want to listen to him/her/them anymore”, “we just need someone to decide so we can get this over with.”
These attitudes not only create barriers to a successful mediation, they also fail to accept the reality that a “win” in a hearing is never guaranteed. Even when the ruling is in favor of one side, the lasting bad feelings created by the adversarial nature of the hearings process can result in continued discord within an association.
Mediation on the other hand, can provide the participants with the opportunity to “clear the air” as well as problem solve in a way that focuses on everyone’s needs and concerns.
To achieve positive outcomes, mediation participants must come to the table: 1) prepared with the information they need to address the issues; 2) committed to “listen” to the other participants (even if they feel they’ve heard it all before), and 3) open to discuss potential creative solutions. It is also helpful for participants to consider how to best use the mediation process to work towards a resolution.
For example: If there are multiple issues to be addressed, then consider prioritizing the issues and setting timelines regarding how much discussion is needed to address each one. If emotions are exceptionally high, then plan to spend more time in private meetings with the mediator to vent and de-escalate, before focusing on the substantive issues. If an impasse is reached, then ask the mediator for suggestions or even an evaluation of the strengths of each participants view to encourage more brainstorming and creative problem solving. If the issues being discussed impact other owners in the association, then discuss and agree on what information if any, will be shared with the other owners.
Committing a sufficient amount of time at the end of the mediation to craft a clear durable agreement is as important as preparing to participate in the mediation. It is also helpful to discuss and include in the agreement how the owner and board want to address potential differences in the future to avoiding misunderstandings and escalated battles again.
The mediation process is designed to provide people in almost any type of conflict with a private, flexible forum for talking and negotiating creative solutions. It is an ideal process for condominium owners and boards because of their ongoing relationship within the condo community. If approached with the right attitude, owners and boards can not only resolve the immediate issues that lead to the dispute, they can also pave the way for working and living together more harmoniously in the future.
Tracey Wiltgen is the Executive Director of The Mediation Center of the Pacific, Inc.
Kathy Howe was first trained as a mediator in Hawaii in the late ’90s. Upon returning to the Mainland, she was trained again by the Arizona Attorney General’s Office.