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Alternative Dispute Resolution |
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From time to time, disputes arise between HOA members or between a member and the Association. If left unchecked, these disputes can escalate into dueling lawyers duking it out in a no holds barred courtroom battle. However, there is never a satisfactory end to this war. The time, emotional and financial cost of legal jousting is tremendous. Judges are rarely schooled in how homeowner associations work so the verdicts are highly unpredictable. Often both defendant or plaintiff are disappointed with the outcome. And after all is said and done, the parties are still neighbors who must figure out a way to get along. ADR or Alternative Dispute Resolution is an alternative that is gaining rapid acceptance in resolving homeowner association conflicts. The basic premise of ADR is that neither party is 100% right or 100% wrong. A trained mediator can usually sort out the issues, cut to the heart of the matter and forge a compromise that allow both parties to save face. This face saving is often more important than the issue that began the fight in the first place. One thing is for certain, neighbors do not always get along. Since that's known, it's only a matter of time before there is conflict. Since HOAs have a structure in place to deal is people issues, it's important to plan for these events just like preventive maintenance on the buildings. Once conflict erupts, it's usually too late to get the parties repointed to an amicable settlement. To that end, adopting an Alternative Dispute Resolution Policy is a perfect way to help guide combatants toward a quicker, cheaper and usually more effective resolution to the conflict. Below is a sample policy which uses the Resolution Process. Use it to shape your own making sure to conform with applicable state statutes and existing provisions in your governing documents. Some states may have a specific statute in place so always have the policy reviewed by a knowledgeable HOA attorney before adopting it to ensure it complies with existing law. |
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WHEREAS, the Board of Directors of Nottacare Condominium believes that conflicts which arise between members or between a member and the homeowner association are best resolved by way of negotiation and mediation rather than litigation; and WHEREAS Alternative Dispute Resolution (ADR) is faster, friendlier, less expensive and more effective than resorting to the courts to resolve disputes; BE IT THEREFORE RESOLVED that the following ADR procedure is hereby adopted by the Board of Directors on the 31st of December 2002 and shall be added to the Resolution Section of the Rules, Regulations & Resolutions: a. Applicability. This ADR procedure shall apply to all disputes which arise within Nottacare Condominium between members or a member and the homeowners association. Participation in the ADR procedure is voluntary on the part of a member and required by the homeowner association. b. Method. The ADR method used shall be "mediation". Mediation is an informal, cooperative, problem-solving approach to conflict resolution. It provides for a neutral mediator to assist the parties negotiate a settlement of their dispute which is agreeable to the parties. c. Mediator. The mediator used for this process shall be one professionally trained to perform this service. The county offers free mediation service and there are several paid services in the area. If the parties cannot agree on a mediator, the free mediation service will be used. If paid mediation is selected, the cost will be shared equally by the parties. d. Procedure (Dispute Between Members) ii. If the efforts by the Board are not successful, within three (3) days, the Board shall send written notice to the parties acknowledging that a dispute exists, identifying the nature of the dispute and offering ADR to the parties. iii. Parties must respond acceptance or rejection within five (5) days. Upon receipt of acceptance by the parties, the Board shall schedule ADR to be held within fourteen (14) days. iv. In a dispute involving more than two parties, if less than all parties agree to ADR, the hearing may still go forward only if such mediation would be beneficial. In a dispute involving only two parties, if less than both agree to ADR, then the offer of ADR will be withdrawn. If the ADR offer is withdrawn and the dispute involves a violation of the Rules, Regulations & Resolutions of Nottacare Condominium, the Board will proceed with normal enforcement procedures. v. If the mediator is unable to achieve a satisfactory compromise, each member is entitled to use other legal methods available to resolve the issue. f. Procedure (Dispute Between Member and
Association) ii. In the event that a member claims that the
Association has failed to act properly or has acted improperly with
regard to the exercise of its duties, responsibilities and powers, the
member shall notify the Association in writing of the claim. The Board
shall investigate the claim and respond to the member in writing within
five (5) days stating the Board's position with regard to the claim.
This notice shall also inform the member of the option to resolve the
dispute by way of ADR. If the member accepts the offer of ADR, it
must be done in writing to the Board within five (5) days. DATED this __________ day of _________________,
201__. ATTEST:
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