Ask any person over the age of six years and they will know what a Big Mac is. Isn’t advertising and merchandising wonderful? In this article I am going to appeal to your stomach in an attempt to merchandise the different ways in which disputes can be resolved. I believe it to be very important that property managers not only understand of what each dispute alternative comprises, but also when each is best invoked. Mediation; Arbitration; Court – the Big MAC!
The Owners wish to dine out. Their first decision is the Restaurant with which they wish to make reservations. The property manager is the waiter/waitress working at the Restaurant. The intelligent property manager will determine what kind of strata corporation is making the reservation so that a decision regarding what should be served can be made.
The first course is the appetizer and/or salad. The menu is reviewed in detail. Often we find it difficult to make a choice because they all look so good. The manager has been retained. This initial stage is typically one of euphoria. The owners seem great. If it is a brand new strata corporation, the owners are just happy to have someone assist. If the corporation has been around for awhile, the owners are just happy to be rid of the last manager. In any event things look good, and run smoothly for a period of time.
Next is the main course. Wine will probably be ordered that is consistent with the appetizer, anticipated salad, or the main course. The wine may be subtle or robust – typically it is the main course that will define the colour and consistency. You must at this point thing that Williams is off his rocker! No, nothing could be further from the truth. You see, the main course can be seafood, poultry or red meat. When a dispute arises in a strata corporation, the alternatives to resolve the dispute are mediation, arbitration and court litigation.
The selection of a main course can be compared to the alternative chosen to resolve a dispute. Mediation is the seafood dish, subtle but flavourful, depending upon the sauce added. Arbitration is the poultry, less subtle than seafood, but still less robust than a red meat dish. Beef or lamb is Court litigation, basically hitting one over the head with a solution with no subtlety. Often it is the makeup of the strata corporation and the personalities of the “combatants” that will dictate the best dispute resolution mechanism. Let us look at the particulars of each alternative.
Mediation is a dispute resolution process in which two or more parties, either in person or through legal counsel, engage a neutral, impartial third party to assist in coming to a consensual resolution of their differences. The mediator is a facilitator who has jurisdiction over the process while the parties themselves retain the power over the substance of the dispute and are responsible for arriving at and forming a mutually acceptable outcome.
When should the main course be this plate of seafood? Riskin and Westbrook, in Dispute Resolution and Lawyers (1987) wrote:
“Because mediation can be conducted in so many ways with so many purposes, the question of when mediation is appropriate has no simple answer…Mediation is appropriate where a negotiated resolution is desirable and the parties or their representatives are unable to negotiate or to reach the best feasible agreement without outside help.”
While there is no criteria that must be present, the more likely the following are present, the more likely a mediated solution will be reached:
- The parties, or any of them, do not prefer a more adversarial or formal approach;
- The issues in dispute are reasonably limited and equally appreciated by all parties;
- The parties enter into the process with a large measure of consent;
- The parties acknowledge the mediator is impartial;
- The parties are able to enter the process with a great measure of good faith – they clearly must wish to resolve the dispute;
- All parties strongly desire the relationship to continue into the future and survive the dispute.
As you can see from the above criteria, for mediation to be considered, the make-up of the owners must be somewhat compromise based. The individuals must want to resolve their differences. Hence my suggestion that this is the seafood course, somewhat subtle and not overpowering.
Mediation encourages interest-based bargaining or negotiation. Basing a negotiation on the interests of the disputing parties, the mediator facilitates a settlement by focusing the parties toward that settlement which will meet as many of the mutual interests of the parties as possible. The final or bottom line positions of the parties shrinks in importance while meeting their interests becomes more pronounced. The key is that the parties are challenged by the matters at issue rather than the individuals or personalities involved. Each party should be creative and eventually with the help of the mediator arrive at a solution with which each party can live and an ongoing relationship is secured.
Where no compromise is possible, the parties will not negotiate a mutually satisfactory solution and a third party decision maker (arbitrator or judge) will have to declare a winner and a loser. Mediation works because there are not winners and losers.
The poultry dish is quite different that the seafood. While both may be white meat, arbitration is more substantial. An arbitrator makes a binding decision, while a mediator seeks to assist the parties in reaching an agreement. Because mediation is a process attempting to settle a dispute, everything said during that process is “privileged”. That is definitely not the case with arbitration.
Arbitration is a legal procedure before a specially appointed arbiter or panel of arbiters. the result of the arbitration is an “award” and that award is binding upon the parties and can be enforced by the courts. By the provisions of the Condominium Act the arbitrator(s) may set their own procedure, including rules of evidence. This allows a great deal of flexibility, which I believe to very important in the condominium setting. For example, the arbitration itself can be heard at the complex, during hours that suit the parties and the arbitrator. Property issues in dispute may be viewed, rather than just described.
While the rules of evidence and procedure are more relaxed than Court, they definitely exist. An arbitrator must be impartial or neutral. The Rules of Natural Justice are paramount. These rules require that each party has a fair and proper opportunity to present its case and answer the case against it. The parties involved in the dispute have a greater chance of a continuing relationship with arbitration than court. However, there is not as great a chance of that happening as mediation, because with arbitration it is the impartial arbiter resolving the dispute, rather than the parties themselves.
Unfortunately, most property managers are more familiar with Court that they wish or should be. Court is the adversarial system at its best and worst. There is a terrible finality to the resolution of a Court adjudicated dispute. It often means a decision rendered by a person who has little experience or understanding of the workings of a condominium. The successful party is frequently unhappy because of the cost of getting to a point that seemed obvious and the unsuccessful party is unhappy for obvious reasons.
This red meat dish is very structured. The hours of hearing are structured, the place the formal atmosphere of a Courtroom. The rules of evidence are strict, and the parties are adversaries in the true sense of the word. As I stated earlier, Court hits the disputants over over the head. Neighbours become neighbours in name only; it is extremely unlikely that they will remain or become friendly.
Now that the meal is finished, how can one decide whether indigestion is likely. I believe that getting value for money is one of the sure ways to avoid indigestion. The seafood dish will likely be the best value – mediation is the least expensive in the long run because a full blown hearing will have proven unnecessary. The disputing parties can remain friendly and preserve an ongoing relationship. The red meat dish is the toughest to digest. The poultry, while easier that the meat dish is still more difficult that the subtle flavours of seafood.
The property manager has effectively been the waiter or waitress, rather that the consumer. How often have you asked a waiter or waitress to recommend a meal? The Big MAC. It is not a hamburger with all the trimmings. It is a dining experience orchestrated by the property manager. The manager must know what is on the menu and what will best suit the tastes of the Owners.