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Subject: Mediation Policy
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Author Messages
BenA2
(Texas)

Posts:521


12/29/2017 7:53 AM  
Does anyone have a mediation policy they care to share? Has your community association ever used mediation that you are aware of?
MelissaP1
(Alabama)

Posts:7477


12/29/2017 4:44 PM  
I will tell you who has a good mediation policy. It's NOT a HOA. It's your local Car Sales place. If you have bought a new car lately, the contract is usually a mediation based agreement. A few years ago they started going to a forced mediation contracts including even video taping your transaction. Each one is different but if you read the fine print, it's saying you have an issue it must go to mediation first or only. So if you were to sue them, it would get kicked out of court until you mediated.

You may be able to use their paperwork as a "guide" of what to look for in having a mediation policy. Which by the way will have to added to your CC&R's by member majority vote if you decide to have one.

Former HOA President
KerryL1
(California)

Posts:5389


12/29/2017 5:38 PM  
Our Association has used mediation services twice in the last 5 years. One was an owner/owner dispute re: nuisance from smoke going from a balcony to the balcony above & into their windows. Smoking is permitted on our exclusive use common area balconies.

The 2nd was by the same complainant as above involving an architectural committee decisions and our board's agreement with it, which opposed what th owner thought he should be able to do (we're high rise condos)

In these cases we did use our HOA's GC and a few of us directors went to the mediation venue. Both took over 1/2 day and both were resolved via mediation. So, I don't low much about the process per se.

If you visit davis-stirling.com which has opinions and advice about all CA statutes re: CIDs (common Interest Developments and is compiled by HOA attorney at a CA law firm. Often their discussions and advice are generalizable to HOAS in other states.

So go to the Main Index and then to Dispute Resolutions. I think somewhere in there you'll find something useful.

Good luck!
BenA2
(Texas)

Posts:521


12/29/2017 9:24 PM  
Posted By MelissaP1 on 12/29/2017 4:44 PM
I will tell you who has a good mediation policy. It's NOT a HOA. It's your local Car Sales place. If you have bought a new car lately, the contract is usually a mediation based agreement. A few years ago they started going to a forced mediation contracts including even video taping your transaction. Each one is different but if you read the fine print, it's saying you have an issue it must go to mediation first or only. So if you were to sue them, it would get kicked out of court until you mediated.

You may be able to use their paperwork as a "guide" of what to look for in having a mediation policy. Which by the way will have to added to your CC&R's by member majority vote if you decide to have one.




Are you thinking of arbitration? In arbitration both parties make their argument before a third party who renders a decision. In mediation the mediator helps the two parties come to an agreement but, even if you sign a document agreeing to mediation, no one can force you to come to an agreement.

Also, a mediation policy would not necessarily require a change in the CC&Rs, especially if it were voluntary. I'm looking for a policy more for encouraging mediation and ensuring it is done correctly when agreed to.
BenA2
(Texas)

Posts:521


12/29/2017 9:29 PM  
Posted By KerryL1 on 12/29/2017 5:38 PM
Our Association has used mediation services twice in the last 5 years. One was an owner/owner dispute re: nuisance from smoke going from a balcony to the balcony above & into their windows. Smoking is permitted on our exclusive use common area balconies.

The 2nd was by the same complainant as above involving an architectural committee decisions and our board's agreement with it, which opposed what th owner thought he should be able to do (we're high rise condos)

In these cases we did use our HOA's GC and a few of us directors went to the mediation venue. Both took over 1/2 day and both were resolved via mediation. So, I don't low much about the process per se.

If you visit davis-stirling.com which has opinions and advice about all CA statutes re: CIDs (common Interest Developments and is compiled by HOA attorney at a CA law firm. Often their discussions and advice are generalizable to HOAS in other states.

So go to the Main Index and then to Dispute Resolutions. I think somewhere in there you'll find something useful.

Good luck!




Thank you, Kerry. That was helpful.
MelissaP1
(Alabama)

Posts:7477


12/30/2017 4:09 AM  
Why would you not put this process in your rules? Seems that if your HOA wants a policy of mediation to deal with issues, it should be documented not assumed. It's always voluntary to enter into mediation. However, if you want to make it mandatory one mediates their issues before going for a lawsuit, then I would have the documented.

Former HOA President
AugustinD


Posts:1045


12/30/2017 6:42 AM  
Posted By MelissaP1 on 12/30/2017 4:09 AM
Why would you not put this process in your rules? Seems that if your HOA wants a policy of mediation to deal with issues, it should be documented not assumed. It's always voluntary to enter into mediation. However, if you want to make it mandatory one mediates their issues before going for a lawsuit, then I would have the documented.


I agree. My HOA has something like this. After a bitter dispute several years ago, my HOA's rules and regs were re-written to provide appropriate HOA due process. Included in the due process is a long paragraph offering the option and terms of going to mediation. It has not been used yet, as far as I know. But I like that the option is there.
BenA2
(Texas)

Posts:521


12/30/2017 8:01 AM  
Posted By MelissaP1 on 12/30/2017 4:09 AM
Why would you not put this process in your rules? Seems that if your HOA wants a policy of mediation to deal with issues, it should be documented not assumed. It's always voluntary to enter into mediation. However, if you want to make it mandatory one mediates their issues before going for a lawsuit, then I would have the documented.



You may have misunderstood me. I agree that it should be documented and it will become part of our hearing and appeals policy which is filed with the county as one of our governing documents.

The hearing and appeals policy consists of voluntary options for the membership so the CC&Rs would not be the appropriate document because it is not placing any type of restriction or rule on any property or member.
MelissaP1
(Alabama)

Posts:7477


12/30/2017 8:11 AM  
It may then needs to go into the articles of incorporation or your by-laws. Articles of Incorporation often have the definition of the Board and their responsibilities. Ours even have a section on what is to be covered in meetings. Although I still think CC&R's is the place to put something like this. If you have in them that you can issue fines, then the process of fighting those said fines should be defined as well.

Former HOA President
BenA2
(Texas)

Posts:521


12/30/2017 8:42 AM  
Posted By MelissaP1 on 12/30/2017 8:11 AM
It may then needs to go into the articles of incorporation or your by-laws. Articles of Incorporation often have the definition of the Board and their responsibilities. Ours even have a section on what is to be covered in meetings. Although I still think CC&R's is the place to put something like this. If you have in them that you can issue fines, then the process of fighting those said fines should be defined as well.



Our articles speak in very general terms about purpose and list the initial board and office address. It seems that the intent is that they almost never need to be amended.

I see the argument for putting it in the bylaws since it falls under how the association is operated.
BenA2
(Texas)

Posts:521


12/30/2017 8:50 AM  
We do not have fines. Our only enforcement action (other than a violation letter) is court, which is one reason I think mediation should be an option before the association files suit. In reality, no court in our county will hear an HOA case before it goes to mediation (so I have been told) but it would be better to settle in mediation before ever filing suit.
MelissaP1
(Alabama)

Posts:7477


12/30/2017 4:50 PM  
Our HOA is allowed to fine but it does NOT have the definition of what to fine for. That is why a HOA has to form a "Fine Schedule" before they can issue fines. That schedule has to define what is a violation and rate of the fine for that offense. Each member has to have a copy and of course agree to it.

However, in our HOA we never fined nor went to court. I believe court is one of the worst options for a HOA to pursue. Instead what we could do is fix the violation and send the owner the bill. IF they did not pay that bill, then we could file a lien for that amount owed. Of course we sent them a violation letter with a time line to correct. Plus we let them know that if we hired a contractor to do the work it was our choice and price.

Otherwise we lien or foreclose for unpaid dues never sue. Lawsuits are court judgements just like a lien is a judgement. The difference being with a lien they can't sell their home till they pay up. A lawsuit they can sell their home and never be seen again. Since no owner/member is required to provide a social security number garnishing wages is much harder to pursue or report to credit. Lawsuits judgements expire at around 7 years. So one would have to renew it if still not paid. How many boards are going to remember or know what happened 7 years ago to go file or pursue?

So mediation is a good thing if one can make it work. Suing your HOA is suing yourself and your neighbors. Having mediation puts a nice little breathing room for everyone to calm down. I like it but again it needs to be properly documented and understood by all.

Former HOA President
BenA2
(Texas)

Posts:521


12/30/2017 8:44 PM  
I would think fixing the violation yourself would be limited to very few circumstances. Our CC&Rs allow us to cut grass or remove trash from private property but our attorney recommends against it. His main concern is the potential for violence but I would be concerned with removing something that has any value, which would be a larceny. Even an old rusty piece of metal has value.This is also Texas where property rights are held high (as they should be).

I agree that court should be avoided as much as possible.
GenoS
(Florida)

Posts:2228


12/31/2017 2:31 PM  
Posted By BenA2 on 12/30/2017 8:50 AM
We do not have fines. Our only enforcement action (other than a violation letter) is court, which is one reason I think mediation should be an option before the association files suit. In reality, no court in our county will hear an HOA case before it goes to mediation (so I have been told) but it would be better to settle in mediation before ever filing suit.

That's how it is in Florida for the most part. The Florida HOA statute, FS 720, mandates pre-suit mediation before any action gets to court. Have a look at section 720.311 to see how it's worded in the statute.
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