Community association disputes—whether they involve owner-to-owner, owner-to-board, or association-to-third party—are no different than any other commercial dispute in that the overwhelming majority of them are resolved short of trial, and in many instances, without litigation altogether. But how do combative or contentious parties come together to reach a reasonable resolution? Many times the answer lies in alternative dispute resolution, or ADR, methods, and more specifically, through mediation.
Mediation differs from arbitration or litigation in that unlike a judge, jury or arbitrator, a mediator does not decide who wins or loses. Instead, the mediator, who may be an attorney or retired judge, but also a layperson with training, assists the parties to negotiate and reach an agreed settlement. If both parties do not agree to the proposed settlement, then they simply walk away without resolution.
Mediation has a structure, timetable and dynamics that ordinary negotiation lacks. The process is private and confidential. Statements made during mediation cannot be used in subsequent litigation, which encourages transparent, good faith negotiation.
Mediation is most successful when both parties are willing to compromise. The process will not work if one or both parties are unwilling to move off their position. Though participation is typically voluntary, many community association governing documents require that the parties proceed with mediation before filing suit, except for ordinary assessment collections actions. Both the Oregon Planned Community Act and Oregon Condominium Act contain similar requirements (Washington’s association statutes do not have such provisions).
If your association is in a dispute and seeks an efficient resolution, you certainly should consider mediation. Many county courts offer free or reduced-rate mediation services. For the more complex matters, professional mediation services with experienced attorneys and retired judges are available in the major metropolitan areas in Oregon and Washington. If you require assistance on a matter or would like help finding the right mediator for your dispute, give the team at Barker Marin a call—we’d love to help.
And as always, if you have specific questions, please feel free to contact me at www.barkermartin.com.