Mediation is Preferable to Court

Graph from Mediation.org

Dispute Resolution Process Continuum Graph reproduced with the permission of the American Arbitration Association

Dispute resolution processes generally are divided into two categories: collaborative and adversarial. As the above continuum depicts, collaborative processes such as negotiation, facilitation, conciliation and mediation provide disputing parties substantial control over the outcome of a dispute. But as one moves from left to right on the continuum and into the adversarial processes such as arbitration and litigation, disputing parties retain less control over the outcome. Moving from collaborative processes to adversarial processes, parties will also incur increasingly greater costs... in terms of time, money, risk, and emotional capital... to achieve an outcome. Essentially the progression from conflict prevention to litigation means contending parties spend more time and more money to get an outcome over which they have less and less control.

Mediation is a voluntary dispute resolution process that both parties must agree to. It is run by a trained third party who helps both sides come to an agreement that satisfies both sides. It is the most cost effective and least disruptive alternative if an appeal to the board does not work. By using an impartial third party, both sides can get a slightly different view of the issues. The biggest obstacle is the board and the board's attorney. If the board's attorney or management company is part of the CAI, it is highly probable that they will advise the board not to use mediation or arbitration (unless mandated in the governing documents). In addition, the board may not be versed in this and probably won't want to take the time--the few hours it takes to sit and discuss it with another party. BUT, if you have a really reasonable board who wants to help their members, you might get lucky and solve the problem via mediation.

It can be very expensive but there are also non-profit Dispute Resolution Organizations that work on a sliding scale. Because it is voluntary and non binding many people and organizations don't bother--but it is an excellent starting place if you can get your board to agree to try. If you have appealed a grievence with your board and it was not worked out, you can request that they go to mediation with you and hope you have a decent board.

You would begin the process by sending a letter to request a mediation. How you approach the board would be determined by the agency you go to for mediation--they would counsel you and help you approach your board. There is an online mediation which costs only $200 and for smaller issues that might be a good solution. For large complex issues you can explore Mediation.org and find well qualified professionals but the cost can be from $300 an hour to $1800 a day. Or you can start at a non-profit dispute resolution organization in your state which work on a sliding scale. Generally your board would pay half and you the other half.

Mediation Sucess Story


In Grass Valley, where the basis and story for HOA Warrior took place, they actually were able to use a mediator in their first dispute. A woman from the Utah Dispute Resolution officiated at their settlement meeting. The Grass Valley Trustees had resisted letting the Members vote for a recall or to hire a manager. They refused the initial requests for mediation--not refused, ignored the requests. The Trustees went so far as to cancel the Member Meetings forcing the Members to file a lawsuit. Their attorney was milking it for all it was worth and the Trustees were listening to the attorney rather than the Members! I will never understand why people get into a position of trust and then violate that trust by listening to an attorney who is making money on the turmoil. Geeze.

Fortunately, when everyone went to the first hearing, it was so obvious that the judge was going to let Members vote, that the board stopped fighting and agreed to a settlement meeting run by a mediator. The settlement meeting was basically just an election, but the mediator helped set up a process that no one felt it was unfair--which would have been the case if the Trustees had officiated or if the Members had officiated. So it is worth trying to start with mediation if there is the slightest possibility you can reason with your board.