binding arbritration

I have requested ADR with my board over monthly fines that are now over $1,000.00. I got a letter back from the board's attorney stating that they would be representing the board at the ADR. This letter came last week. Today I received another letter from the board's attorney stating that they would be willing to go to binding arbitration instead. I am sure that I will win wherever we go, as are several of the other members. Can anyone tell me the difference? I am sure one difference is the cost to me and the association for one thing. I thought the idea of ADR was to get the parties together to compromise and try and resolve issues to keep us from going to court. How much would this cost? Just curious if anyone has seen or heard this before.
Bob

Bob T: What you are thinking of is mediation. A mediator tries to help both parties reach a compromise and if a compromise is not reached the testimony given cannot be used later in a law suit. There is no such thing as being sure you will win when your homeowners association has endless money (yours and the other homeowners') to spend on attorneys. I would never agree to binding arbitration as you give away all your legal rights. However, a mediation process is well worth trying.

ADR generally refers to the whole area or mediation and arbitration. I would recommend a mediator first, and then think carefully about binding arbitration. You definitely want an attorney if you go into binding arbitration. But I too would certainly try mediation before going into arbitration.

I do not get the check and waving it under their nose part. I wanted ADR so we could sit down me, the board, and a third party. I have checked into it and it would cost me $200.00 and it would cost the board $200.00. My problem is that the board is having the attorney be there for them. So what is the point? I can't go into this without my attorney if they send theirs. Why waste the money? The board has stated at meetings that they will not file a lawsuit against me because it would cost too much but that they will wait for me to be backed into a corner and when I file a lawsuit it will be covered in their insurance. I have never even mentioned a lawyer or suing or any other useless threats, although I have talked to one and they are waiting in the wings. I have even had a board member stand up at a meeting and tell everyone they will just lien my house. I am trying to avoid this but it is to the point that I have tried everything to end this and the board refuses. I even have had several homeowners that have written letters, spoken at meetings on my behalf and nothing. Some have even told me to wait until August and they will run for the board and end this. But I will not risk that happening. Is it correct that the board not be at the ADR and the lawyers be there for them? I think that the new lawyer that has seen all the stuff the board has done and now wants binding arbitration, will go into to it and state that the board will no longer fine us, we can continue doing paperwork from our home ( as our CCR's allow) and this is dropped. My problem with that is that we still have fines we have paid under protest and outstanding and we will have to pay our lawyer.

FYI. . .

Following is the definition of mediation and arbitration from US Legal. Note that the arbitrator is chosen by the parties or IAW the terms of the contract which the parties have agreed to. No way would I agree to allowing the HOA attorney to act as the artibrator unless I also have chosen another artibrator and a 3rd disinterested arbitrator - the 3 of which would comprise a panel.

Arbitration and Mediation Law & Legal Definition

Arbitration is an alternative means of setttling a dispute by impartial persons without proceeding to a court trial. It is sometimes preferred as a means of settling a matter in ordert to avoid the expense, delay, and acrimony of litigation. There is no discovery and there are simplified rules of evidence in arbitration. The arbitrator or arbitrators are selected directly by the parties or are chosen in accordance with the terms of a contract in which the parties have agreed to use a court-ordered arbitrator or an arbitrator from the American Arbitration Association. If there is no contract, usually each party chooses an arbitrator and the two arbitrators select a third to comprise the panel. When parties submit to arbitration, they agree to be bound by and comply with the arbitrators' decision. The arbitrators' decision is given after an informal proceeding where each side presents evidence and witnesses. Arbitration hearings usually last only a few hours and the opinions are not public record. Arbitration has long been used in labor, construction, and securities regulation, but is now gaining popularity in other business disputes.

Title 9 of the U.S. Code establishes Federal law supporting arbitration. It is based on Congress's plenary power over interstate commerce. Where it applies its terms prevail over state law. There are, however, numerous state laws on ADR. The majority of states have adopted the Uniform Arbitration Act as state law. Thus, the arbitration agreement and decision of the arbiter may be enforceable under state and federal law. In 1970, the United States joined the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

Some arbitration proceedings are mandatory, such as many labor disputes. Other arbitration proceedings are incorporated into contracts in the event of a dispute. Couples who sign cohabitation agreements or divorce agreements often include a clause agreeing to go to arbitration if any dispute should arise, thereby avoiding the delay, expense, bitterness and formality of litigation. Companies may seek arbitration of disputes for public relation reasons, so as to avoid the negative publicity of a trial.

Mediation is a non-adversarial method of alternative dispute resolution (ADR) in which a neutral third party helps resolve a dispute. The mediator does not have the power to render a decision on the matter or order an outcome. If a satisfactory resolution cannot be reached, the parties can pursue a lawsuit.

Mediation is often used to help a divorcing or divorced couple work out their differences concerning alimony, child support, custody, visitation and division of property. Some lawyers and mental health professionals employ mediation as part of their practice. Some states require mediation in custody and visitation disputes. Other states allow courts to order mediation and a few states have started using mediation to resolve financial issues as well.

Thank you Mary. I guess it would be in the best interest of the association to have their attorney be there at ADR for them. Which in turn would force me to have my attorney at the ADR also. I see that it is none binding so that may be why the association's attorney wants me to go to binding arbitration. I am just not sure if that is in my best interest. Thanks for all opinions
Bob

There is a good reason for the BOD to have their attorney represent them in arbitration. It comes down to that one of them could open their mouth and ruin whatever ground they may have should the ADR fail. Also, if they come tot he table sans, attorney, then they give up attorney client privilege. Once you have an attorney take your case, you should NEVER drop said attorney.

I would recommend you contact their attorney and tell him you prefer non-binding mediation. You simply don't know if it will work or not. But at the end of the day you will have a strong basis to know if you have a strong case or not.

It sounds to me like they are wanting the issue resolved and to minimize their attorney expenses. While their attorney is representing them, you should feel free to ask him what your legal options are. He is bound to tell you honestly. Of course he is not going to tell you their case sucks or some such. But he has to tell you the choices available.