Condo Media - May 2018 - 30

r
e
h
t
y
o
a
n
A
W

A

lternative dispute resolution (ADR) isn't a new
concept. It's historical roots date back to 1800
B.C., when ancient Syria used mediation to
resolve disputes with other kingdoms. But it's
only in the past 30 years that ADR has attracted serious attention and gained wide acceptance in the United States,
as many businesses, the courts, and elected officials have
embraced it.
As is true of many trends, New England has been slower
than other areas to adopt this one. "It's reached a boil in
other parts of the country, but it's still at a low simmer in
New England," Kat Marquis, owner of Marquis Mediation,
LLC, observes. It is growing here, too, she says, "but slowly."
National interest in mediation is reflected in the number
of states that have adopted or are considering legislation encouraging or mandating it. Many of these measures specifically target condominium associations.
The Community Associations Institute (CAI) reports that
eight states have enacted or are considering measures creating state agencies-either an ombudsman or information
center-charged with helping condominium owners resolve
conflicts in their communities. New Hampshire recently
referred to study a measure creating a condominium dispute
resolution board in that state and Rhode Island lawmakers
came close to enacting a measure that would have required
non-binding arbitration for most condominium association
disputes there.
A recent CAI study was sharply critical of most of the state
ombudsman programs established to date, citing among
many flaws: the "cost and complexity" of the process, and

30

CONDOMEDIA

LAWMAKERS EYE
ALTERNATE DISPUTE
MECHANISMS FOR
CONDOMINIUMS

their "lack of mutuality." Most of the programs allow homeowners to file complaints against association boards, the
report notes, but provide no mechanism for boards to file
complaints against owners.

A HELPFUL MODEL
One model CAI finds "helpful," says Dawn Bauman, CAI's
senior vice president of government and public affairs, is a
Virginia program that requires associations to establish an
internal mechanism for resolving complaints-a good practice, she believes-and requires owners to use that process
before seeking help from the state ombudsman.
While CAI sees value in mediation for condominium
associations, Bauman notes, the institute does not think
states should either mandate it or oversee the process.
The institute's critique of ombudsman programs acknowledged that condominium owners "could benefit from
mechanisms to assist in dispute resolution," and said CAI
"supports the ability of the community association to
adopt bylaws or amendments to their governing documents to mandate alternative dispute resolution (ADR)
prior to litigation."
CAI's policy position on ADR similarly emphasizes flexibility: "Recognizing that no one community is the same and
with a genuine interest in making the ADR procedure accessible to all owners, CAI encourages community association
board members to design ADR procedures most appropriate for the community's needs toward resolving disputes,
subject only to the law of the state and requirements
contained within the community's governing documents."
Condo Media - May 2018

Table of Contents for the Digital Edition of Condo Media - May 2018
