November 8, 2020|  by Jessica Smith

JESSICA SMITH

Absolutely.  Mediation is a method of dispute resolution that has been found to be highly successful.  Most courts require or recommend its use before they will even schedule a trial.  To understand why one must recognize the strengths and weaknesses in our judicial system.

The strengths are easy; each side gets its day in court and the right to be represented by legal counsel.  The weaknesses are less apparent.  With these rights come great expense and the inability to control the outcome.  Lawyers are not inexpensive, and even the best judge or jury can focus on the wrong fact or misinterpret the law, leading to an unexpected and costly outcome.

Meditation lowers the costs and puts control of the outcome, at least partially, in the participants’ hands. Mediation utilizes a third-party neutral as the Mediator, typically agreed on by the parties, who attempts to negotiate a settlement between the parties.

Mediation is done by separating the parties and facilitating a settlement “conversation” between the various sides.  While the Mediator does not decide the outcome, they can offer guidance and objective analysis to each side.  The Mediator can also discuss confidential components of the case with each side without ever revealing those confidences to any other participant.

If the process is successful, the parties will end the mediation by signing a settlement agreement that resolves most or all of their outstanding issues.  The time spent by lawyers and the participants is drastically reduced when compared to a trial.  Moreover, each side has participated in the resolution instead of turning it over to an already beleaguered court system or arbitrator.

Why would a Homeowners Association want to participate in a Mediation?

The Directors on the HOA Board volunteer their time.  They have busy schedules, and dedicating several days to a court hearing or arbitration is not practical.  Also, the Directors act as stewards of the HOA’s finances.  They must look for the least expensive option for dispute resolution with any of its members.  Mediation offers that option.

Why would an individual member of a Homeowners Association want to participate in a Mediation?

Once again, the cost would be the primary motivation.  When facing an HOA, the individual member faces the combined treasury of all its members’ contributions.  As a result, the HOA often has vastly greater financial resources than the individual member.  The marathon that is litigation can often be too long for the individual member to run.

Finally, mediation offers the chance that all parties can mend what may be a very long relationship.  Rarely does a court victory end without one part feeling deeply disgruntled and angry.  Mediations, on the other hand, often end with all parties starting on the road to reconciliation.