On Being a Neutral: Mediating Neighborhood Disputes

Neighborhood and property associations are places ripe for internal and external strife, in light of their sheer numbers; the frequent comprehensiveness of their rules and regulations; the intensely personal nature of hearth and hope. At the same time, neighborhood disputes do not lend themselves to litigation, for the many of the same reasons. Accordingly, this blog post discusses why neighborhood and property associations should strongly consider mediation to resolve their various internal and external disputes.

Today, an estimated 60 million people currently live in about 300,000 "association-governed" or "common ownership" communities across the U.S., and about half of all new homes being built today in the U.S. will also be located in association communities. See Daniel Brannigan, "Associations at a Tipping Point," Community Manager newsletter (Community Assocs. Inst. May/June 2010); see also Lou Gieszl, "Trouble in Paradise," ACResolution (Su. 2007). These "association-governed" or "common ownership" communities include high-rise condominiums, gated communities, planned communities, townhouse complexes and even trailer parks.

Moreover, in this scenario people with competing interests involving family and property are living together in close proximity, and subject to a variety of rules and likely variances in the rules' historical application.

Under these circumstances, the existence and likelihood of neighbor and neighborhood association disputes are hardly surprising. As Lou Gieszl, president of the Association for Conflict Resolution (ACR) and deputy executive director of the Maryland Judiciary's Mediation and Conflict Resolution Office, puts it: "there's a lot of unresolved conflict out there." See Brannigan. In another article, Gieszl observes such community associations are 'the subject of vocal criticism from some angry, organized residents who complain that their associations are highly litigious, uncontrolled and dictatorial," as well as "greedy, covert, ... fiscally insolvent, inaccessible, incompetent, self-serving and petty." See Gieszl.

Common disputes can cover a gamut of issues and activities, including but not limited to:

sudden and drastic increases in association dues to cover previously insufficiently budgeted capital outlays;
actual, perceived and/or arguable covenant violations;
covenant enforcement policies, procedures and the even handedness of their enforcement;
use of shared features or structures, such as paths or driveways; and
barking dogs and other loud noises.

Additionally, there's a special subset of problem types related to the widely differing interests and values between owners, developers and other stakeholders:

owners with children may desire that expenditures geared towards playgrounds; while
owners without kids may value more aesthetic goods, such as well-landscaped pathways; and
owners who rent or plan to move will likely want to shy away from high assessments or costly improvements; yet
association rules--which are usually crafted by developers, who are more concerned with maintaining the neighborhood's appearances for prospective buyers"--may likely promote or even require such costly outlays.

See Brannigan and Gieszl. Despite all these potential disputes, however, "too few association board members and managers are trained in conflict resolution and rely on strict adherence to rules and covenants." Id. Perhaps that's why they are often perceived as uncontrolled, dictatorial, inaccessible, self-serving and petty. In any event, as a consequence of their lack of knowledge or training in ADR principles, the default position of many neighborhood or property associations often seems to be to go to court, although the cost of such litigation can run to tens of thousands and often far, far exceed the monetary value of the right asserted. See Brannigan and Gieszl.

For these reasons, the Alternative Dispute Resolution (ADR) community is increasingly encouraging their services in the context of neighborhood and neighborhood association disputes. Some local government are doing the same. For instance, the City of Albuquerque's ADR Division has an entire program and panel of mediators devoted to these kinds of disputes within ins boundaries. Mediators have special training in communication and dispute resolution theories, and have at their disposal a variety of tools, to help bring parties together and effectively communicate including:

encouraging parties to speak directly to each other if appropriate;
facilitating free, open and nonjudgmental brainstorming;
engaging in active listening to hear underlying interest and concerns beyond the stated position, and helping the parties to do the same;
helping parties distinguish between their positions (I want the orange) and the underling interest (I need the juice for my baby; I need the pulp for a smoothy; and I need the peel for zest in a cake), and identify win-win proposals in which all interests are met (the orange is split three ways with each party getting all that it needs because the specific interests are addressed);
reframing problems, especially as being shared or mutual;
providing venting opportunities, while still steering parties gently back to the issues at hand;
offering parties the opportunity to speak in private, confidential caucuses on issues for which they are not yet ready to speak to one another directly;
while in private caucus, engaging in reality checking and, if appropriate offering own or other sides' suggestions;
encouraging each side in caucus to put themselves in the other sides' shoes, to see their perspective on the injury, the solutions, and the risks and benefits of proceeding to litigation;
helping build trust between the parties, such as by acting as a "cheerleader" of sorts as they come to agreement on small issues, or acknowledging when the parties are making good faith efforts at reconciliation or accommodation; and
once an agreement is reached, ironing out the who/what/when/how details, and memorializing the parties' agreement in writing.

Although against the current trend, when mediation is used it is estimated to have a 75-90% success rate. See Gieszl, citing Robert Nelson, Private Neighborhoods. Sometimes, however, disputes are still too diffuse or inchoate, and the interests and parties ill defined, to yet be ready to proceed to mediation. Attorneys James A. Rosenstein and Gary A. Krimstock have identified the following factors to consider in deciding whether a dispute is ready to be referred to mediation:

the issue or issues at the heard of the dispute have been adequately defined;
everyone who has a stake in the conflict or its resolution have, and their underlying interests, have been identified; and
the various stake- or interest-holders are ready and willing to meet and attempt to resolve their dispute(s) in a non-adjudicative matter, such as mediation, facilitation or other ADR method.

See Rosenstein and Krimstock, "Using Mediation to Resolve Disputes in Your Community Association While Improving its Bottom Line."

Rosenstein & Krimstock also make a number of suggestions for helpful preparation for mediation, the first three of which are forecasted by the preceding list:

clarify issues;
identify all necessary parties;
determine the willingness of all necessary parties to participate in mediation;
decide whether to mediation and, if so, which issues to include;
identify a mediator who is mutually acceptable to the parties;
agree on procedural rules for the mediation, including how any resultant agreement will be documented.

Id.

If you or your community is interested in exploring mediation for your disputes, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.

Pilar Vaile

Pilar Vaile, P.C.

Albuquerque, NM

On Being a Neutral

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Thursday, June 30, 2011

Mediating Neighborhood Disputes