Your Way Our Way Third Way Mediation The Right Way Tim Flanagan Berding amp Weil Matthew A Gardner Richardson Ober PC Barry Ross Ross Mediation Services Dan Zimberoff Homeowner Law What We Will Cover ID: 763851
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Your WayOur WayThird WayMediation – The Right Way Tim Flanagan, Berding & Weil Matthew A. Gardner, Richardson | Ober PC Barry Ross, Ross Mediation Services Dan Zimberoff , Homeowner Law
What We Will Cover
Dispute Resolution – What is It About?
Overview of California Civil Code Dispute Resolution IDR v ADR
IDR – Internal Dispute ResolutionCivil Code 5900 – When it is Used? Whenever PossibleApplies to a dispute between an association and a member involving their rights, duties, or liabilities under Civil Code, under the Nonprofit Mutual Benefit Corporation Law, or under the governing documents Civil Code 5905 – Is it Needed? Yes, Develop a Policy. An association SHALL provide a fair, reasonable, and expeditious procedure for resolving a dispute within the scope of this article. Civil Code 5910 – Minimum Requirements? A fair, reasonable, and expeditious dispute resolution procedure
What is Fair? -Civil Code 5910a) The procedure may be invoked by either party to the dispute. A request invoking the procedure shall be in writing. (b) The procedure shall provide for prompt deadlines. The procedure shall state the maximum time for the association to act on a request invoking the procedure. (c) If the procedure is invoked by a member, the association shall participate in the procedure. (d) If the procedure is invoked by the association, the member may elect not to participate in the procedure. If the member participates but the dispute is resolved other than by agreement of the member, the member shall have a right of appeal to the board. (e) A written resolution…(or) A written agreement, signed by both parties… is judicially enforceable. (f) The procedure shall provide a means by which the member and the association may explain their positions. The member and association may be assisted by an attorney or another person in explaining their positions at their own cost. (g) A member of the association shall not be charged a fee to participate in the process.
IDR – Internal Dispute ResolutionCivil Code 5915 – What if No Policy? Use CodeRemember - A member shall not be charged a fee to participate in the process. Civil Code 5920 – Do I give Notice? Yes. The annual policy statement prepared pursuant to Section 5310 shall include a description of the internal dispute resolution process. Civil Code 5900 – Am I done with Resolution? NO… This article supplements, and does not replace…Section 5925 relating to alternative dispute resolution as a prerequisite to an enforcement action
IDR -Results
ADR – Alternative Dispute Resolution
What is Proper Request? – Civil Code 5935 (a) Any party to a dispute may initiate the process required by Section 5930 by serving on all other parties to the dispute a Request for Resolution. The Request for Resolution shall include all of the following: (1) A brief description of the dispute between the parties. (2) A request for alternative dispute resolution. (3) A notice that the party receiving the Request for Resolution is required to respond within 30 days of receipt or the request will be deemed rejected. (4) If the party on whom the request is served is the member, a copy of this article. (b) Service of the Request for Resolution shall be by personal delivery, first-class mail, express mail, facsimile transmission, or other means reasonably calculated to provide the party on whom the request is served actual notice of the request. (c) A party on whom a Request for Resolution is served has 30 days following service to accept or reject the request. If a party does not accept the request within that period, the request is deemed rejected by the party.
ADR – Alternative Dispute Resolution
Dispute Resolution IDR ADR
Terminology
Differences in ADR“Alternative dispute resolution” Civil Code 5925 Mediation Arbitration Conciliation Nonjudicial Procedure that involves a Neutral Party
ALTERNATIVE DISPUTE RESOLUTIONMEDIATION More informal than arbitration Focused on reaching resolution between the parties Parties control the outcome Caucus sessions Written agreement is enforceable ARBITRATION Can be binding or non-binding More formal – mini trial Individual arbitrator or panel Evidence is introduced Arbitrator(s) decide If binding, decision is final
? Conciliation or Non-Judicial Procedure?Think Outside the Box“Inside” Neutral Fellow Homeowner Mutually Trusted Person Solutions
What To Consider Before Selecting ADRCivil Code 5930 Litigation Requires Advance ADR Enforcement Actions Declaratory – What do CC&Rs say/mean? Injunctive – Prevent Harm Writ Relief – Undo Harm Assessment Disputes
COMMON CONFLICTSNuisance (noise, smoking, etc.)MaintenanceArchitectural Violations of the Governing Documents (parking, pets, etc.)
UNRESOLVED CONFLICTS LEAD TO . . .Time and StressLoss of Community Cohesiveness Legal Fees Diminished Property Values Distraction from Important Association Business
EnforcementAre the CC&Rs Clear ? Will Decision Affect Other Owners? Architecture Maintenance Ownership Will a delay Increase Harm? Are Parties Open to Resolution?
AssessmentsIs there a discrepancy?Does Board have Director Willing/Able to Resolve? Pending Legislation – COMING SOON Are Parties Open to Resolution
WHAT TO EXPECT AT MEDIATION WHAT TO EXPECT AT MEDIATION
Mediation Do’s and Don’tsDO Set realistic goals Listen/speak with respect Be open-minded Focus on the instant issue (not past grievances) Remember you all have to live in the same community afterwards DON’T Lose your temper Be uncompromising Disparage the other party Lose perspective Forget this is your chance to control the outcome
Parties involved in ResolutionMediator Association/Owner Attorney
MEDIATOR – What is Role?
Association or Owner – What is Role
Attorney – What is Role
Who Do you Bring?
Helpful Participants – Team Members
UNHELPFULParticipants – Cheer Leaders
Mediation BriefSummarize Your PositionGive Mediator your Perspective Identify Authority for Position Demonstrate Good Faith Indicate (Any) Areas of Agreement Discuss Position on Resolution Mediator Musts Decide on Whether to Make Information Private Keep it Brief!
What to BringDocuments?Gov Docs Authority Records - Dispute? Letters/Emails Pictures Witnesses?
StrategyKnow your ObjectiveLitigation Resolution Know Your Opponent Business Partner Owner/ Future Board Member Know your Limits What can You Give Up? Agreement out of the Question?
Where Mediation Falls Apart
Mediation Do’s and Don’tsDO Set realistic goals Listen/speak with respect Be open-minded Focus on the instant issue (not past grievances) Remember you all have to live in the same community afterwards DON’T Lose your temper Be uncompromising Disparage the other party Lose perspective Forget this is your chance to control the outcome
?QUESTIONS?
Tim FlanaganBerding & Weil tflanagan@berdingweil.com Matthew A. Gardner Richardson | Ober PC matthew@richardsonober.com Barry Ross, Esq. www.rossmediation.com barryross@rossmediation.com Daniel Zimberoff Homeowner Law danzimberoff@homeowner-law.com