Engaging in mediation implies that something between the parties has broken down. There’s a disagreement, an argument, a conflict. Mediation provides a mechanism to settle the conflict by conversation and voluntary agreement.
But why is mediation successful? One reason is that mediation changes the structure of how we discuss conflict. In everyday conversation, we interrupt and may not pay complete attention to whoever is speaking to us. But mediation allows each party to tell their story, without interruption. Further, each party is directing their story at a 3rd party neutral mediator who has the authority to enforce conversational etiquette. Many times, disputes are resolved simply by allowing the parties to speak and be heard without argument or interruption.
Civil trials in the United States have been on the decline over the last decade. Much of the reason is because parties often reach a settlement through alternative dispute resolution, such as mediation or arbitration. Many conflicts in homeowner and condominium associations are resolved through mediation. Mediation is voluntary—you aren’t bound by decisions of the mediator. However, if an agreement is reached, you’re legally required to comply with the terms of the agreement.
For Oregon community associations, mediation may be required before filing a lawsuit. With a couple of exceptions, associations or owners must offer to use alternative dispute resolution:
(a) Subject to paragraph (f) of this subsection, before initiating litigation or an administrative proceeding in which the association and an owner have an adversarial relationship, the party that intends to initiate litigation or an administrative proceeding shall offer to use any dispute resolution program available within the county in which the planned community is located that is in substantial compliance with the standards and guidelines adopted under ORS 36.175. The written offer must be hand-delivered or mailed by certified mail, return receipt requested, to the address, contained in the records of the association, for the other party.
In addition to hopefully settling the dispute, mediation provides other benefits. For example, a mediator (new to the conflict) may quickly point out weaknesses in your argument or legal position. Another important point is that mediation is inexpensive, especially when compared to the cost of taking a case to trial.
When preparing for mediation, it’s important that the board of directors is on the same page. Knowing what the board will agree to beforehand is critical to a successful mediation. Depending on the nature of the dispute, it may make sense to use a mediator who is also a lawyer with experience in the type of dispute at issue. Most important, though, is that the parties to a mediation must be willing to look forward toward a settlement or compromise, and avoid dredging up the events that led to the dispute.
Board members must recognize that mediation does not dwell on who may ultimately win at trial. While that may be a factor, it doesn’t dictate the outcome of the process. Mediation requires that board members focus on coming to an agreement that is mutually satisfying to everyone involved. In short, it’s the time to compromise.
Some cities and counties provide mediation services. The City of Beaverton runs a dispute resolution center with trained mediators and is free for residents. http://www.beavertonoregon.gov/disputeresolution.
Community Mediation Services in Clark County is inexpensive and also uses trained mediators: http://www.mediationclarkcounty.org/