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Mediation Offers Cost Efficient Way to Settle Dispute Out of Court
Several years ago, the Illinois Condominium Property Act was amended to encourage dispute resolution as an alternative to litigation, -- arbitration and mediation -- as an alternative to litigation. Mediation can be a cost effective problem-solving technique, especially in situations where costs must be contained.
Perhaps it is best to start out by saying what mediation isn’t. It is not a process forced upon anyone against his or her will. It can only work if all participants agree to accept the result of their own efforts. The mediator is not an arbitrator, nor a judge. Mediation will not create legal precedent. Mediation will not get its participants their "pound of flesh." Mediation will not put lawyers out of business. Mediation will probably not destroy an ongoing business or personal relationship that needs to continue into the future.
What mediation can also do, is find a solution to even the most complex dispute and not only save a relationship, but possibly strengthen it. It would seem that it would be particularly beneficial to help solve a "neighbor dispute" between two owners.
What mediation can do, by applying the concept of "volunteerism," is change how most people will view the world. As a former litigator, I know that a court imposed result, whether by verdict or pre-trial conference, is a "dissatisfier." Rarely, if ever, can all parties be satisfied with the result when it is imposed by a third party. No matter how many times litigants say that they only want their day in court, unless they get everything they want and have no attorneys’ fees to pay, they will always have something to be unhappy about.
Neither party generally gets what they wanted, because even if they did, they are still resentful of the fact that they had to pay an attorney to get what they felt they were entitled to. If the case was settled, as 90% of the cases that are filed are, they are frustrated because they had little, if any, involvement in the process and no one got to hear their story.
What is particularly frustrating, for example, is a case of a contractor suing an association for $6,000 because of a dispute and then the association and the contractor have to each pay their attorneys $6,000 to litigate $6,000. Based upon simple math, that puts $18,000 into the stream of commerce!
Mediation is really negotiation with the help of a third party. That third party is neutral and is trained to provide a focus for the parties on all of the issues and encourages them to resolve their own dispute. Needless to say, by leaving the emotional baggage on the loading dock and checking the egos at the door, an aggrieved party is going to be far more satisfied with a result they created themselves rather than one imposed upon them. As we all know, disputes over towing cars, removing pets, disciplining unruly children, noisy stereo, etc. are not tailor-made for the court house.
Mediators should be fully trained in their art. By utilizing such basic skills as listening, an effective mediator can get the parties to talk to each other, not at each other. The mediator is trained to get the parties to separate the facts from the beliefs and to focus on a resolution based purely on a factual and rational basis. If the mediator is able to remove the emotions from the discussion, the parties will settle their own dispute with the mediator’s assistance. That, of course, is the toughest part.
The mediator’s focus is to offer suggestions and hints to move the discussion away from an adversarial atmosphere by directing the discussion toward a resolution. This is a difficult job. It would be far more difficult, maybe nearly impossible, if this is imposed upon the parties by an over involved mediator. But, that mediator is not doing their job if they have been engaged to act in a purely neutral capacity. The mediator’s task is to get the parties to put aside their emotions voluntarily.
By utilizing this somewhat informal, uncomplicated approach, several things can happen; people will have a way to solve their disputes without spending more on an attorney than the amount at issue and the courthouse will not become clogged with senseless cases taking up valuable time and wasting taxpayer money.
For associations that are trying to be cost conscious, yet stand firm on enforcing their covenants, the board should consider mediation as an effective tool to resolve disputes and settle problems. When two or more parties to a dispute all reside in the same community, it is better to have a problem resolved where everyone came to an agreement voluntarily and shook hands.