Condo Media - May 2018 - 26

' Magic in Mediation'

C

Condominium attorneys-at least most
we interviewed for this article-don't
share her enthusiasm for mediation or
her conviction that it is a desirable option
for their association clients. "I don't like
it," Ellen Shapiro, a partner in Goodman,
Shapiro & Lombardi, LLC, states. Shapiro and other attorneys believe mediation
forces associations to unnecessarily
and inappropriately cede authority and
negotiating strength that state laws and
governing documents provide.
The debate is important, because the
courts increasingly favor mediation (as a
means of controlling crowded dockets),
and lawmakers in many states are
promoting legislation requiring condominium boards and owners to mediate
disputes before taking them to court. (See
sidebar on page 30). Some condominium
documents also now require mediation
or arbitration for some disputes.
To clarify, we are talking about mediation rather than arbitration. Although the
terms are used interchangeably, they are
not synonymous. Both offer alternatives
to litigation. Arbitration is less expensive
and less formal than litigation, but more
formal and more expensive than mediation. A key difference: In an arbitration,
an arbitrator or a panel of arbitrators,
renders a decision, which may or may not
be binding; in a mediation, the mediator
facilitates a negotiation between the parties, who themselves craft an agreement
that resolves their dispute.
EFFECTIVE, COST-EFFECTIVE
AND CONFIDENTIAL
Marquis, whose firm (Marquis Mediation, LLC) provides mediation services
throughout New England, recites a long
list of mediation's benefits, beginning
with its effectiveness. Mediation succeeds most of the time, she says-80
to 90 percent of the time, according to
the American Arbitration Association.
And unlike litigation, which can drag on
for weeks or years, she points out, most
mediations can be completed in a day and
at a fraction of the cost.
Mediations are also confidential-they
don't create a public record and so don't
attract the media attention and negative

26

CONDOMEDIA

publicity a legal battle can produce. Freed
of the rigid rules and formal procedures
that govern litigation, participants in a
mediation "can think outside the box,"
Marquis says. "They can brainstorm and
come up with creative solutions." Equally
important, she suggests, is the "buy-in"
mediation produces. "When parties participate in determining the resolution of
a dispute," she says, "they are more likely
to comply with it."
But the primary benefit of mediation
for community associations, she believes,
lies in its structure and its philosophy:
Litigation, by its nature, is a tug-of-war,
designed to produce winners and losers;
mediation is a collaboration, designed to
bring parties together. Where litigation
emphasizes differences between participants, mediation encourages a "we're all
in it together" mentality, Marquis suggests. And in a condominium community,
where warring parties are also usually
neighbors who must continue living
together after a dispute ends, "mediation
is a great alternative for boards," she says.
Many condominium disputes are
driven by emotions-people feel they
are being treated unfairly or think their
concerns are being ignored. What many
people want most, Marquis says, is "a
chance to vent," and mediation provides
a forum in which they can do that.
In one recent mediation in which she
was involved, a condo owner arrived
with a huge binder
filled with detailed
descriptions of every
"transgression"
about which the
owner was complaining, including photos
illustrating them.
"It was important to
her to be heard and
acknowledged," Marquis recounts. "And
once she had presented her case, the
tide turned. When she
said, 'Can I put my
binder away now,' I
knew we were going
to settle."

Attorneys who oppose mediation or
question its benefits, typically agree with
the assumption on which it is based-
that their association clients should
avoid litigation, if possible. But they
don't think mediation is appropriate for
many association disputes, and where
it is a viable option, they don't think a
structured mediation, involving an outside mediator is necessary.
AN IMBALANCE OF POWER
The biggest problem with mediation and
the reason many condominium attorneys
reject it, Richard Brooks, a partner in
Marcus, Errico, Emmer & Brooks, believes is, "it doesn't work in its traditional
form for most condominium issues."
Mediation is designed to create a level
playing field in which the parties have
equal negotiating power. But in a condominium, Brooks notes, the association
holds most of the power-and appropriately so, he says, for the same reason
that municipal governments have more
power than individuals. "Associations
need their power to make sure the community works for all of its members."
One of the most powerful tools
the association has, he says, is the
threat to sue owners who violate the
statute or the governing documents.
Mediation dilutes that threat. "Isn't
the association better off with the
ability to threaten litigation, and the
added threat that owners might be required
to pay court costs and
attorneys' fees?"
Some mediation
advocates suggest
that the prospect
of collecting attorneys' fees and court
costs-guaranteed to
associations in some
legal disputes-creates an incentive
for them to litigate.
But Brooks says this
legal hammer in the
board's hand actually
has the opposite
effect. The threat of
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