Disputes between a homeowner’s association (HOA) and homeowners are unpleasant and often unavoidable. Disputes can be costly particularly if the matter is filed in a lawsuit and taken to court. Parties can avoid expensive litigation by resolving HOA disputes through mediation and other out of court alternatives.
The HOA board members must provide an opportunity for homeowners to meet and converse with them whenever a dispute arises. All members must be provided a fair and speedy procedure for settling disputes with the HOA without costing them anything. This procedure is known as Internal Dispute Resolution or IDR.
Internal Dispute Resolution (IDR)
One or two board-appointed members will meet with the homeowner and attempt to fix the issue. If the meeting was requested by the HOA, the member has the right to say no. The HOA, on the other hand, cannot refuse a request made by the member. A legal counsel could be present but at the parties’ expense.
The IDR’s cooperative yet informal setup allows the parties to focus objectively on their concerns. Since negotiation is held in an informal setting, the process requires very little in terms of time and expenses. The resolution (if one is reached) should be written and signed by the board-appointed members and the homeowner.
If the IDR’s “meet and confer” process fails, the HOA board attempts to resolve the dispute using other cost-efficient, non-judicial procedures called alternative dispute resolution (ADR). This alternative includes arbitration and mediation.
Arbitration is a popular method of resolving conflict but considered an adversarial form of ADR. Think of it as a lesser version of a court trial.
An arbitrator who facilitates the process is usually a highly skilled legal professional. They act somewhat as a private judge who can make legal decisions based on evidence and testimony. Both parties have their lawyers to represent them. After relevant documents and sworn testimony are presented, the arbitrator reviews the evidence and then makes a decision, just like in a court trial. An arbitrator’s decision can be appealed but only under limited circumstances.
Arbitration can take up a significant amount of time and money, but usually costs less than going to court. Parties are motivated to reach a consensus to fix their issues before they get to the final step.
Mediation is a cost-efficient alternative you can use to resolve disputes out of court. Unlike arbitration, mediation is non-adversarial. Disputing parties attend mediation sessions where a neutral third-party called a mediator helps both sides sort out their dispute and reach a resolution.
A mediator does not represent either party and has no vested interest in the matter. Their work is to facilitate a dialog between the parties until they come to a compromise. If a resolution is attained that is agreeable for all, the parties can then enter into a mediation agreement.
A mediation agreement is a legally binding contract that lays out the settlement terms along with solutions in case one party violates the agreement. HOA members can avoid wasting money, time, and a lot of stress once this agreement is in place.
If the processes mentioned can’t help you reach the desired resolution, then legal proceeding in a court, complete with lawyers, judges and high fees, is the next stop. Discuss any disputes that arise with your association’s attorney and find out the best actions you can take. The best way to avoid lawsuit in the first place is to adopt best practices so you can prevent disputes before they start.
Is a lawyer required for mediation?
Being represented by a lawyer during mediation is recommended to protect the rights and interests of your homeowners association. If a mediation agreement is proposed in the sessions, make sure that it is in accordance with your HOA’s rights under the law. Your legal counsel can tell you whether a particular agreement isn’t in your HOA’s best interests. Have your mediation agreement drafted or reviewed by a competent lawyer.
Kanter Ostler Mediation provides homeowner’s associations mediation services for various types of legal disputes. We aim to resolve issues as quickly and efficiently as possible. Call us today at (619) 304-2244 or contact us online to schedule your mediation with one of our skilled HOA mediators.