March 2013 Bar Bulletin
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March 2013 Bar Bulletin

Community Associations Should Consider Mediation over Litigation

By Kevin L. Britt and Elizabeth Demong


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.1

While conflicts within condominium and homeowners associations involve lower stakes than the types of situations that Vance has faced (he played a major role in the negotiations to end apartheid in South Africa and to 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 this 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 mails a violation notice to the owner's address 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 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 especially conducive to resolving association disputes without leaving bitter parties behind. This begins with mediation's informal process in which a neutral third party helps the parties resolve a dispute. Positions are tempered because the mediator does not typically express views or rule on the merits of the parties' positions.

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