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Differences Alternative Dispute Resolution (ADR) is a popular method that allows people to solve disputes in a cooperative manner rather than through litigation. Because the parties settle out of court, time frames and expenses are often substantially reduced. ADR is becoming very popular among community associations for some critical reasons: Community disputes involve neighbors and the win-lose result of many court verdicts perpetuates unhealthy feuds between those neighbors. Secondly, disputes often are matters of principle like architectural design or rules instead of money. ADR gives the parties a sense of involvement in the process, making compliance with the result more likely than with an imposed court verdict. Parties using ADR sometimes stipulate beforehand that any agreement reached will be enforceable as a contract. If the is no such agreement, the parties are free to use other methods to solve their dispute. Regardless, ADR may help better define the dispute and understand how a judge or jury might react to the case. ADR is considered private and confidential. All communications and documents are confidential and cannot be used in a court of law unless the documents are independently discoverable. Even a party's demeanor in the proceedings may not be disclosed. ADR may be voluntary, mandatory, binding, or advisory and may involve either mediation, conciliation or arbitration. Mediation is an informal method of ADR that involves a trained mediator helping disputing parties negotiate a settlement of their conflict. Each side meets privately with the mediator, as well as in joint sessions with the mediator and the other side. Mediation is non-binding because the mediator does not have the power to impose a resolution on the parties. Rather, the role of the mediator is to help the parties reach their own resolution. While courts are limited by law to specific remedies, mediation is limited only by the nature of the problem and the parties' own creativity. The parties come to a solution themselves, and therefore are invested in an enduring resolution. Conciliation is an informal process in which an acceptable neutral third party is asked to investigate a dispute, usually one involving complex or technical issues. A third party meets with the parties at separate times, analyzes the disputed facts, and issues findings in a report or recommendation. This process may be especially useful in handling sensitive disputes where strong emotions interfere with the ability to conduct a fair and impartial investigation of an allegation. To avoid the appearance of unfairness, an association may turn to the outside neutral third party in hopes of reaching a settlement. Arbitration allows both parties to present their cases to a neutral third party. The role of an arbitrator is different from that of a mediator, because the arbitrator makes a decision. The parties stipulate in advance whether the decision of the arbitrator will be binding or non-binding. If binding, the decision is enforceable in court in the same manner as any other contractual obligation. Arbitration is best used in cases involving factual conflicts that can be resolved by experts on a particular subject. Finding an ADR Provider ADR providers vary widely in specialization, expertise, ability, and quality. Potential providers should be questioned about their training about the issues in dispute. Costs vary depending on the type of dispute and the expertise of the ADR provider. Some providers charge an hourly rate, while others charge a flat fee. Information is available from the following organizations: Better Business Bureau Alternative Dispute Resolution is a sensible option for many community association to resolve their differences. The outcomes are usually more satisfying because the parties take active participation in the resolution. Consider enacting a resolution process in your community that includes this kinder, gentler alternative. BACK
Quelling the Quarrel Conflict is a natural part of human relationships. Self interest is a top priority while other's interests are usually somewhere down the list (WAY down). People become embroiled because interests or values are challenged. Here are a few suggestions for quelling the quarrel: Know What’s What The Board wasn’t elected to babysit or police neighborhood squabbles. Some issues are association, some are not. Don’t take on personality conflict issues. People that can’t get along often look for others (you) to blame. Don’t get involved unless it affects the general harmony of the community. Let Them Deal With It If asked to intercede, suggest they discuss and resolve it like adults. If they won’t, let it go. Don’t encourage this kind of immature behavior by facilitating more of it. Clarify the Issue If the issue impacts the whole community, clarify it. What seems to be isn’t always what is. Ask each party what they think "the issue" is. That alone may resolve the issue when they realize they don't really know. Facilitating Discussion If the association’s interests are involved, here are several tips for facilitating the discussion:
~ There are too many/much/little/few... Compared to what? Good conflict resolution focuses on needs, not positions. It is indeed possible to quell the quarrel and harmonizing your community should be a top priority. BACK
Dispute
Mediation Consider cases like one in California where a dispute over a fence landed a homeowner with $40,000 in his own legal fees and, when he lost the decision in court, forced him to pay the $61,000 of community association legal fees as well. Or drapes. Litigating over a $500 set of drapes ended up costing one association homeowner $15,000 in legal fees. On top of which, after the legal jousting has ended, there you are living next door to the same people with whom you did battle by proxy. The war often settles down to a slow seething simmer and stays there for years. What a way to live. There's got to be a smarter way for alleged adults to resolve differences, you'd think. There is. Call off your dogs. Alternate Dispute Resolution (ADR) is the problem-solving method of choice for more and more homeowner organizations. Training is available for those who are interested in starting an ADR program as well. Participants in mediation or arbitration procedures between homeowner association members describe the results as astonishingly effective and satisfying. The cost for mediation services in most areas is low or nominal. Mediation & Arbitration In some parts of the country, if both parties are willing to accept the terms of the recommended solutions offered by the mediator, a conciliation or consent agreement is drawn up. Both parties sign the agreement and it becomes an enforceable contract. Some groups that use this form of ADR insist that if both parties cannot reach an agreement the dispute proceeds to a public hearing of the association. The outcome of that hearing results in a binding agreement as well, which carries the same weight as a lower court decision. The other form of ADR is the process of arbitration in which both parties, at the outset, accept that the ruling of the arbitrator will result in a binding settlement. The American Arbitration Association, which is listed in the Yellow Pages of most cities, reports a steady increase of commercial mediations over the last six years. A dispute mediation service created in 1991 in Hawaii reported an 85% success rate among those parties who could be brought together. Clearly, ADR is having an impact on the homeowners association community. BACK HOA Terrorism Board meeting terrorism is designed to hold the Board hostage to relentless rants of demands. The goal is clear: instant gratification. This form of HOA terrorism is designed to directly challenge board authority and to disrupt the orderly process. As with any terrorist attack, the Board’s initial reaction is disbelief. But, the reality of the assault soon becomes clear and the need to act urgent. How should the Board deal with this kind of attack? When presented a list of demands, should the items be discussed point by point? Should they be recorded in the minutes? What should be done? Rule #1: Never negotiate with terrorists. The Board is not obligated to discuss anything not on the agenda. And it's unfair and unreasonable to expect answers to firing line questions. The response should be, "Thanks for making your points. We’ll review them and give you a response in writing or consider them at the next Board Meeting." Rule #2: Don’t record a list of demands. Minutes are intended to discuss in broad terms the business of the Board. Specific motions should have enough detail to describe them, the discussion and outcome of the vote. It is not a forum for soap boxing, editorializing or where items are entered into "evidence". It’s enough for the minutes to state, "Mr. Terrorist asked that the Board consider issues relating to (describe)." Rule #3: Control your Owner Forum. To encourage owner input, an Owner Forum before the meeting should give each speaker owner up to 5 minutes to speak, but no more, so the Board can get on with its business. Letting someone hold the Board hostage should never be allowed and it's up to the President to control such actions. An abusive person should not be allowed to continue for any length of time. Rule #4: When attacked, respond quickly and firmly. When the attack becomes apparent, it's the President’s job to interrupt and, if necessary, ask the attacker to leave the meeting. If the attacker refuses to comply, the President should adjourn the meeting and advise that such conduct will not be allowed at future meetings. Call the police if necessary. HOA terrorism is designed to fan the flames of emotion and to promote rash response. The Board needs to walk the high road and refuse to "dance" with such people. While this isn’t easy when the attack is intense, the directors outnumber the attacker and with a unified response, should be able to defeat the challenge and even help point the terrorist toward a better way. BACK Schedule of Fines To solve the inequities, or potential for them, Oregon mandates that all HOA boards that intend to levy fines or penalties must have a formally adopted Schedule of Fines that identifies both the fineable offenses and the specific amount of fine or penalty (Example of penalty: A car parked in a designated Fire Lane will be towed automatically and the owner must pay all towing charges) and apply it uniformly to all violators. While all HOAs may not have fines for rules, virtually all have penalties in a collection policy for failure to pay as agreed (or should) so this law will affect all HOAs. And the practicality of policy is applicable to HOAs in any state. This, as Martha Stewart would say, is "a good thing". It will take a lot of pressure off the Board to "fine on the fly" or overreact to an owner that’s being a pain in the rear. BACK Noise
Ploys Since construction related noise complaints are bound to be heard again and again, the Board should indeed be proactive and there are a number of things it can do. Here are some ploys to deal with noise. Quiet Hours Policy. Have a formal policy that promotes a quiet environment. Quiet hours like 9 pm to 9 am Monday through Friday and 10 pm to 10 am Saturday - Sunday are reasonable. In defining what noise is, rather than get into specifics like stereos and barking dogs, something like "any sound disruption that significantly interrupts sleep and the quiet enjoyment of the neighbors" works best. Dealing with Complaints. The Board should not get involved in noise complaints unless several documented attempts have been made by the affected parties to resolve the issues. They need to recite the nature of the disturbances, frequency, dates, times, action taken by the complainant and response from the noise maker. Do not allow this important step to be circumvented by accepting requests to intercede prematurely. In most cases, neighbors dealing directly with neighbors will solve the problem. Accept only the hard and documented cases. And never intercede in events that normally would be handled by the police (domestic disturbances and other violent activity). Also, frequency of the disturbance is a critical element. There is a big difference between two complaints over a six month period and two within a week. A repeat disturbance within no more than two weeks is a reasonable standard. Call in the Experts. If there is a flaw in the building sound design, it isn’t necessarily fatal. There are a variety of corrections varying from lifestyle changes to architectural modifications. To help sort them out, hire a qualified architect or engineer to analyze the problem and provide a list of solutions that can be shared with owners. Those should include modifications made by both noise senders and receivers. A soundproofed ceiling may be more expedient than expecting the upstairs neighbor to rip up the oak floor. Most neighbors do not want to be a pain and will follow the recommendations. Set Architectural Standards. In the interest of community peace and quiet, the Board does have the authority to establish reasonable standards for architectural design. While this generally applies to exterior appearance, structural components that impact the neighbors, like floor surfaces, can also be included. For example, any owner that wants hardwood flooring should be required to install a sound proofing material under or over it to reduce or eliminate sound transmission. Let remodeling owners know the requirements before the floor is installed. Facilitate the Upgrade. One of the real advantages of homeowner associations is group buying power. If there is a building wide problem, even if it exists within the units, the owners can join together by way of the association to address the problem as a whole rather than sending individual owners off on their own. By joining together, the whole problem is solved at the same time and at a volume discount. Fines. Fining is usually a last resort solution for hard cases. The noise fine policy should lay out a series of increasing penalties like first disturbance, a written warning; second, $25 fine; third, a $50 fine; fourth, a $100 fine...make the penalty enough to get their attention but not so outrageous that a judge would spank the Board for being dictatorial. All notices of violation and fines should be in writing and include an appeal process. That ensures a record of the event and no misunderstanding of the issues. Fines should be billed and collected just like regular assessments. If not paid, follow the normal collection routine. Defensive Action. Sometimes a good defense is the best offense. Some noise complaints are the result of over sensitivity or mismatched schedules like a swing shift worker trying to sleep during the day. In such cases, it makes more sense that the complainer take defensive action rather than expect unreasonable changes from the neighbor. Using "white noise" like box fans or fountains can drown out many noise problems and cost little. Noise can be a vexing issue, especially when the offender is insensitive. The Board can reduce widespread complaints by enacting noise reduction standards and providing proactive solutions. Using these creative noise ploys in your community, peace and quiet will soon be heard loud and clear. BACK © Copyright by Regenesis.net
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