Condo Media - May 2018 - 28

' Magic in Mediation'
A NEUTRAL PARTY
The most common conflicts in condominium associations pit owners vs.
other owners, or owners vs. boards. In
the former (owner vs. owner), boards
are often dragged unwillingly into the
disputes. Siding with neither party,
Brooks suggests, the board itself
or the board's attorney can act as a
mediator, without incurring the added
expense of hiring an outside mediator.
Although the attorney represents
the board, he or she can be viewed as
"neutral" in these situations, Brooks
notes, because the board itself is
a neutral party. Even in conflicts
between boards and owners, when association attorneys are not likely to be
viewed as neutral, they can sometimes
play the mediator's role, according to
Edmund Allcock, a partner at Marcus
Errico Emmer Brooks P.C., who heads
the firm's litigation department.
He cites as an example the Rhode
Island statute requiring associations

to hold a due process hearing before
fining owners or bringing some covenant enforcement actions. "This isn't
technically a mediation," he says, "but
it can turn into one," with the attorney
mediating the dispute. The attorney
must set the right tone, he says, making it clear to the owner that "this isn't
an inquisition-it's an opportunity for
the owner to talk to the board. [The
message should be], 'we want to hear
from you.'"
The key, he says, is bringing the parties together.
"Nothing is worse than having a
faceless entity-a board that sits on
high-sending enforcement letters
and fine notices by mail. When you
have a face-to-face meeting, positions
will often soften, and conflicts will
often get resolved." If not, he suggests,
the board's demonstrated effort to
negotiate a remedy will bolster its
position should the conflict wind up
in court.

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Attorneys left to right: Dan López, David Chenelle, Rob Anctil, Scott Eriksen, Charlie Perkins, Jr., Rhonda Duddy, Kim Alley.

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CONDOMEDIA

UNCERTAIN OUTCOMES
While some condominium owners can
be stubbornly litigious, some boards
can be equally so. Confident that they
will win the legal argument and collect
court costs and fees when they do,
board members will sometimes insist
on following owners, or leading them,
into a court battle both sides would be
better off avoiding. But this scenario
doesn't always play out as expected,
Marquis points out, because legal outcomes are not predictable. "Litigation is
a role of the dice," she says. "There are
no guarantees."
A dispute she describes as "Jingles, the
most expensive dog in New England,"
illustrates her point. A New Hampshire
condominium association went to
court to enforce a no-pet rule against
an owner, who had a dog. The association won every court decision, but the
owner kept appealing, all the way to the
New Hampshire Supreme Court. The
association ultimately prevailed and
should have recovered thousands of
dollars in legal fees, Marquis notes, but
the owner declared bankruptcy "and the
association got nothing." Associations
that become embroiled in extensive
battles like this often find that "even
when they win, they don't win," she says.
"It's impossible to distinguish the victors
from the vanquished."
Mark Rosen, who is of counsel to
Boston-based Schofield Law Group,
LLC, has seen that scenario play out, to
negative effect, with many condominium associations. In one case, he notes,
an association board refused to allow a
prospective buyer to install a chair lift
he was probably entitled to have and
was willing to install at his own expense.
Ignoring Rosen's advice to avoid litigation, the board insisted on a court fight.
"The association could have paid for the
chair lift for what it cost them in legal
fees," he says.
Unlike many association attorneys,
Rosen is a staunch advocate of mediation
for his clients. "Some form of alternative
dispute resolution is absolutely the way
to go for condominiums," he says. "Litigation should be the last resort."

Condo Media - May 2018

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