The Importance of Mediation

Engaging in mediation implies that something between the parties has broken down. There’s a disagreement, an argument, a conflict.  Mediation provides a mechanism to settle the conflict by conversation and voluntary agreement. 

But why is mediation successful? One reason is that mediation changes the structure of how we discuss conflict.  In everyday conversation, we interrupt and may not pay complete attention to whoever is speaking to us. But mediation allows each party to tell their story, without interruption. Further, each party is directing their story at a 3rd party neutral mediator who has the authority to enforce conversational etiquette. Many times, disputes are resolved simply by allowing the parties to speak and be heard without argument or interruption.

Civil trials in the United States have been on the decline over the last decade. Much of the reason is because parties often reach a settlement through alternative dispute resolution, such as mediation or arbitration. Many conflicts in homeowner and condominium associations are resolved through mediation. Mediation is voluntary—you aren’t bound by decisions of the mediator. However, if an agreement is reached, you’re legally required to comply with the terms of the agreement.

For Oregon community associations, mediation may be required before filing a lawsuit. With a couple of exceptions, associations or owners must offer to use alternative dispute resolution:

(a) Subject to paragraph (f) of this subsection, before initiating litigation or an administrative proceeding in which the association and an owner have an adversarial relationship, the party that intends to initiate litigation or an administrative proceeding shall offer to use any dispute resolution program available within the county in which the planned community is located that is in substantial compliance with the standards and guidelines adopted under ORS 36.175. The written offer must be hand-delivered or mailed by certified mail, return receipt requested, to the address, contained in the records of the association, for the other party.

In addition to hopefully settling the dispute, mediation provides other benefits. For example, a mediator (new to the conflict) may quickly point out weaknesses in your argument or legal position. Another important point is that mediation is inexpensive, especially when compared to the cost of taking a case to trial.

When preparing for mediation, it’s important that the board of directors is on the same page. Knowing what the board will agree to beforehand is critical to a successful mediation. Depending on the nature of the dispute, it may make sense to use a mediator who is also a lawyer with experience in the type of dispute at issue. Most important, though, is that the parties to a mediation must be willing to look forward toward a settlement or compromise, and avoid dredging up the events that led to the dispute.

Board members must recognize that mediation does not dwell on who may ultimately win at trial. While that may be a factor, it doesn’t dictate the outcome of the process. Mediation requires that board members focus on coming to an agreement that is mutually satisfying to everyone involved. In short, it’s the time to compromise.

Some cities and counties provide mediation services. The City of Beaverton runs a dispute resolution center with trained mediators and is free for residents.

Community Mediation Services in Clark County is inexpensive and also uses trained mediators:

Conflict Resolution In Community Associations

At some point, board members and owners within condominium or homeowner associations will face conflict. Knowing how to effectively resolve conflict will maintain civility and harmony in the community. Generally, there are four steps to resolving conflict: 1) negotiation, 2) mediation, 3) arbitration and 4) litigation. 1. Negotiation

Prior to more formal alternative dispute resolution, the parties engage in negotiation. Each party attempts to educate the other about the position they are taking, their needs and their interests. The most important part of negotiation is the ability to listen to the other side and attempt to come to a mutual understanding.

2. Mediation

Mediation involves the parties in dispute and a neutral, third-party mediator. Mediation does not require the parties to come to any formal agreement, but that’s the end goal. There are many community mediation services with trained mediators. However, if the dispute involves complicated legal issues, a mediator with a legal background is often preferable.

During mediation the parties get to explain their positions and tell their side of the story. The mediator’s job is to find common ground and see what (if anything) the parties can agree to.

Besides potentially resolving the conflict, mediation can expose your side’s weaknesses, which may influence your decision to arbitrate or litigate the dispute in the future. Keep in mind, Oregon law requires (in most circumstances) that the party initiating the claim offer mediation prior to filing an arbitration or litigation claim. (See ORS 100.405 and ORS 94.630)

3. Arbitration

Arbitration is much more formal than mediation. Some governing documents require the parties (association vs. owner or association vs. developer) to submit all disputes to binding arbitration. The arbitrator, or panel of arbitrators, conduct the arbitration similar to a court trial. If the arbitration is binding, the ruling of the arbitrator is the final ruling on the issue and the parties are bound to the decision.

Some state courts require arbitration of all cases less than a certain dollar amount. In court mandated arbitration, the losing party may appeal the decision of the arbitrator and continue to a judicial or jury trial.

4. Litigation

When all else fails, sometimes litigation is the only avenue to pursue. Litigation means filing a lawsuit in court and a trial in front of a judge or jury. Attorney fees for litigating an issue through trial can be very expensive. However, depending on the claim, an association may recover its attorneys fees if it’s the prevailing party.