Disclaimer: This article is for informational and promotional purposes only. Dan Artaev is a trained mediator, as well as an attorney, and this article does not constitute legal advice.
Disputes between a condo board or a homeowners’ association and a resident are some of the most contentious battles that I have ever witnessed as an attorney. A board must balance personal property rights against the rights of the community by enforcing deed restrictions. And understandably, emotions run high when a resident perceives the board as infringing on their property rights and telling them what they can or can’t do. I have represented both individuals and boards, and when elevated to litigation, these disputes are not only toxic for the community – they almost always end in a lose-lose for everyone involved.
Regardless of who “wins,” both sides have spent thousands of dollars on attorney fees. Litigation and appeals can take years to work through the judicial system. The property owner still has to live in the same neighborhood and endure the “bad blood” that comes out of litigation. The association will have spent its budget on litigation instead of improvements to the community, and may even have to make a special assessment to pay for legal fees. And even if the owner wins, the owner is still part of the community, and may even end up paying the losing association’s legal fees as part of that special assessment.
This is why I strongly recommend mediation to resolve neighborhood disputes before anyone files a lawsuit. The potential benefits are enormous, and the costs are relatively low – certainly a lot lower than fighting it out in court. One of the biggest benefits is that attorneys need not be involved – the resident can represent themselves and the board can be represented by its president or another member with authority to resolve the issue. The mediator is the only cost and it is shared. Another advantage is that mediation is confidential. If you would like to keep your dispute private and not a matter of public record (like lawsuits), then mediation is the way to go. Even if a lawsuit is later filed, mediation or anything said in mediation cannot be used as evidence. Also, not all disputes can be taken to court – but all disputes can be mediated. Issues like loose dogs, lighting, noise, and other “nuisance-type” disagreements can all be resolved in mediation on their own or as part of a bigger issue. The bigger issues like non-conforming structures, fences, and lot lines that could easily be the subject of a court injunction can likewise be mediated. Unlike litigation, mediation is an extremely flexible process that is designed to end in a win-win for both parties – and perhaps most importantly, to help the parties continue living in the same neighborhood.
So what does a mediator do? A trained mediator’s job is to get the parties together, and then to facilitate communication and collaborative problem solving to help them towards a solution. A mediator must always remain neutral and is not going to tell each side whether they are right or wrong – rather, a mediator will help the parties find solutions that work for all by focusing on common interests and goals. When the parties are in control of their own process, it is amazing how a creative and effective solution will emerge. This so-called facilitative approach works very well for neighborhood cases, but also has tremendous application in the business context and other areas.
If you still have doubts, the reality is that if you do go to court, the judge will see a homeowners’ association lawsuit and immediately order the parties to go to mediation. Except that now everyone has to bear the additional costs of an attorney as well as a mediator, tempers are running higher, and yet you are still in the same place as you would have been had you tried to resolve your issues with pre-suit mediation.
But you may be thinking, how do I get the other party’s attention without serving them with a lawsuit? If you are a homeowner, you may want to attend a meeting of your association and express your desire to mediate on the record, to be reflected in the official minutes. Or, send a letter to the association formally expressing desire to mediate your dispute. If you are homeowners’ association, a formal letter inviting the homeowner to participate may get their attention – or if there is a member of the community that the homeowner has a good relationship with, that member may reach out and suggest mediation. Emphasis on a confidential and low-cost process may be particularly effective.
Finally, where do you find a mediator? I am a trained mediator, and you can either contact me with questions or click here to find out more about my mediation services. I even offer special rates to mediate pre-suit disputes where no attorneys are involved and I mediate exclusively via Zoom, so no travel necessary for anyone. Also, many communities have dispute resolution centers – for example, the Dispute Resolution Center of West Michigan is one that serves the west side of the state, and the Oakland County Mediation Center offers resources on the east side.
“Good fences make good neighbors, but neighbors who mediate are best.” – Dan Artaev, Artaev at Law PLLCTweet
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