Conflict exists all around us. It is neither good nor bad but it is how we handle conflict that matters. Most people do not like conflict and will do almost anything to avoid it. Anything except the obvious, that is, which is to manage conflict and in the best case, prevent its escalation.
We each have our preferred mode of dealing with conflict and it ranges from avoidance to responding aggressively. It is much the same with condominium communities. Some manage conflict well; others not so well. Some condominium communities may avoid dealing with conflict, while others may have a disproportionate response to it.
In the everyday operation of condominiums, the most common disputes tend to be between the unit owner and the condominium corporation. Attempting to work out the issues among those concerned via negotiation is the usual method for resolving disputes between parties. This may involve condominium board members, unit owners, tenants and property management. The earlier the intervention, the better the chance of a satisfactory outcome for everyone involved.
If negotiations are unsuccessful, alternative dispute resolution in the form of mediation and arbitration is required for certain types of dispute between unit owners and the condominium corporations in Ontario. Section 132 of the Condominium Act, 1998 requires that any disagreement between the condominium corporation and unit owner regarding the declaration, by-laws or rules must be submitted to mediation and arbitration for resolution. Mediation and arbitration will still be required under the “new” Condominium Act.
If the dispute is covered in the Condominium Act, the following process is required: First, mediate the dispute. If mediation is not successful, or one party does not participate, then it is required to move the dispute to arbitration. If a party does not comply with the arbitrator’s decision, however, a court order must be obtained requiring compliance.
We must look at conflict and disputes as part of the reality of community and condominium life. Conflict and disputes arise because people want different things. In addition to this, there is often miscommunication and an unwillingness to compromise. This is rare, but it does happen. It is just the character or nature of the people involved that drives the conflict.
In condominiums, conflict is generally between related parties and the parties are interdependent to some extent. However, there is usually a perception of incompatible goals wherein the parties perceive their goals as mutually exclusive. There is often interference from the other party and the parties involved attempt to prevent each other from reaching their goals. As a result, it can distract parties from priorities, build barriers between people, affect productivity and morale, and in rare cases, lead to physical and/or psychological harm. There is also the problem that conflict can poison the atmosphere in the community.
But there are positive sides to conflict as well. It can lead to new ideas, help parties seek solutions together, increase understanding, communication and respect, as well as provide new opportunities for dialogue. For condominiums, solving small conflicts may prevent more serious ones.
This article will review the two most common Alternative Dispute Resolution (ADR) processes: negotiation and mediation. Both are key processes that boards, managers and unit owners should learn about.
When considering your response to a “troublesome” individual, keep in mind Newton’s Third Law that to every action there is always an equal and opposite reaction. Those of us who work in the field have often experienced the reaction of parties to a demand letter or phone call as being far more than equal to the action! This always ratchets up the temperature of the dispute and once escalated it is difficult to work out a mutually workable solution without resorting to the legal process.
Instead of beginning the process with formal letters or demands, you should consider using an escalating procedure where you step up the tone of your “demands.”
Start off by communicating in a way that invites not an argument, but a response and explanation. Try a polite phone call. Ask for cooperation rather than demanding compliance with the terms of the Declaration, By-Laws or Rules.
It is important to keep in mind that beneath each party’s position are their interests, which are really their needs and wants. Meeting these goes a long way towards working things out. Communication, information and education are the keys to the successful prevention and management of all types of disputes.
How can condominium communities get through these barriers to resolution? One option is to use Alternative Dispute Resolution or ADR. Often called Appropriate Dispute Resolution, it is the negotiation, mediation and arbitration outside the traditional litigation process. Condominiums need to be willing to talk to disputants and develop communication, negotiation and mediation skills. There also needs to be earlier intervention in disputes.
Negotiation is the most common dispute resolution process and we are all familiar with it. It is defined as “communication between two or more parties to reach a mutually agreeable solution.” You can represent yourself or use an agent such as the condominium’s property manager or lawyer. You can maintain control over the negotiation process. There are two main styles of negotiating and that is competitive and cooperative. We are most used to competitive where we like to “win.” In cooperative, we work with the other party to find “win-win” solutions.
In the book Getting to Yes by Roger Fisher and William Ury, a classic book on negotiating, the authors suggest that we try to use principled rather than positional negotiation in dealing with all types of disputes. There are five simple, yet effective guidelines:
- Separate the people from the problem.
- Focus on interests, not positions.
- Invent options for mutual gain.
- Use objective criteria.
- Know your BATNA (Best Alternative To Negotiated Agreement.)
Before we dismiss this approach as naive or unworkable in real life situations, it is important to remember the subtitle of the book which is “Negotiating Agreement Without Giving In.” This is what we want to achieve.
If negotiation does not result in a resolution, however, then you can consider mediation. Mediation is an informal non-binding process facilitated by a neutral party. It is a process in which parties maintain control.
Mediation can be set up quickly. It is less expensive, faster, and other than negotiation, it is more efficient than most other dispute resolution processes. The participants decide what works for them and determine the outcome(s). The process is confidential and private. In mediation, the parties recognize and acknowledge each other and consider the importance of the other side’s views. The quality of decision-making is improved as the parties have ownership of decisions. Both parties “win.”
Mediation can flush out emotions, save time and energy, improve future relations and craft solutions to specific situations. You can resolve the dispute at an early point and keep the matter private. Mediation has a high (75%+) settlement rate and today, many judges expect the parties of condominium disputes to mediate before coming to court, even if it is not a required step under the Condominium Act.
The mediator is an impartial third party and their role is to make the introductory comments, establish guidelines, and explain the steps to the mediation model that is used. This will typically have the following stages:
- setting the table
- storytelling (why are we here?)
- determining interests
- setting out the issues
- brainstorming options
- selecting the durable options
The mediator facilitates the discussion but cannot make the decision for the parties. If mediation is unsuccessful, then many condominium disputes head to arbitration.
In arbitration, a neutral third party renders a decision based on the merits of the case after a trial-like hearing. While the parties maintain some control over the process, such as choosing the arbitrator, they do not have as much control as they would in mediation. The scope and rules may be set out by statute or contract and parties may also work together to design the process. The arbitrator assumes control and the decision is binding. It must be noted that arbitration is far more expensive than mediation.
Our almost instinctive reaction to conflict is to try and impose our solution but our goal should be to pull people towards a resolution, instead of pushing them.
While it may be difficult to accept that you should focus on interests in the heat of the “battle,” it is well worth trying. If you are successful then you will achieve your goals. If not, you have very strong evidence to show a judge or arbitrator how reasonable you have been, which can be very important if you are attempting to recover legal or other expenses incurred while dealing with the dispute.
In condominiums, most of the time we focus on resolving disputes. But if we can prevent them from occurring or even manage them after they begin, we can produce far more satisfying results and maintain the sense of community. People have to get along and are more likely to do so if they see that their condominium board and property manager is trying to work with them and not against them.
The idea of enforcing your rights may be attractive, especially when you are convinced you are correct, but experience tells us that negotiating in a collaborative fashion produces more sustainable solutions in the long run.