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How we resolve our disputes

Entries in alternative dispute resolution (8)

Monday
Apr242017

Home Sweet Home (sometimes)

I am a baby-boomer. That means that many of my friends and relatives are at that point in life where they are in the process of, or considering, selling the single family home in which they raised their children and moving to condominium or other type of property where landscaping and common elements are taken care of collectively, together with other owners. Often, a homeowners’ association performs those tasks and manages the community. Sounds idyllic. But the legal consequences are too often the opposite. People who haven’t shared residential property ownership with anyone other than their spouse and children since college — 40 to 50 years ago — suddenly have to relearn what sharing means. And, of course, there is no such thing as a free lunch, so they have to pay for the privilege of sharing. Monthly condo or homeowners’ association fees have to be factored into their budgets, along with special assessments and reserve accounts. When things don’t get done, or get done poorly or late, finger pointing begins. Sometimes, the fingers are pointed at the association’s management, board members or other owners. So much for the idyllic scenario. 

When disputes arise between condo or collective homeowners and their association or contractors, litigation frequently ensues.  The resulting litigation can be lengthy, acrimonious and costly. Unfortunately, it seems to be rare in Wisconsin for a condo or homeowners’ association to have an alternate dispute resolution provision in their declaration, by-laws or rules. In Florida, a state statute requires pre-filing mediation and arbitration of certain homeowner/association disputes. 

Recently, I have represented several clients buying and selling condos or homes that are part of an owners’ association. Both parties always want to be sure there are no pending special assessments or delinquent monthly dues. Some lenders (including FHA loans) also want to know if there are any unresolved disputes between other owners in the association, or between the association and any of the owners or outside contractors. The pendency of disputes can make it difficult to sell or finance the purchase of a condo or home unit. So it is in everyone’s best interest to resolve such disputes expeditiously. Therefore, I would not be surprised to see more homeowners’ associations and developers include mediation or arbitration clauses in their governing documents. Even existing developments can change their rules to include such clauses, with the owners’ consent. The sooner and more frequently that occurs, the more likely that our Golden Years will not be tarnished. 

Tuesday
Jun182013

Facilitative vs. Evaluative Mediation

In my last post, I discussed the difference between neutral evaluation and facilitative mediation. Since that time, an article on the same subject appeared in the Wisconsin Lawyer, the official publication of the State Bar of Wisconsin. One of the authors of the article is Michael Moore, a fellow soccer Dad whom I have known for many years. The article does a great job of defining the two formats. Unlike me, the authors define both of these types of dispute resolution methods as mediation. I believe that only the facilitative method is true mediation. Neutral evaluation is more like non-binding arbitration or a mock trial. It is basically a win-lose scenario, but with non-binding results. Facilitative mediation is a search for a win-win scenario. Nonetheless, the article is an excellent introduction to the uninitiated, as well as a timely reminder to those who may not always remember that there is another way. Too often, litigation attorneys are like the man with a hammer — to them, every problem looks like a nail.  

Mr. Moore and his co-author clearly set forth the differences between what they consider to be the two most prominent types of mediation. What surprises me is that title of the article, “Take a Different View: Explore Mutual Interests with Facilitative Mediation,” seems to imply that the facilitative format is something new and different. Facilitation is different than evaluation, but it is hardly new. While it does seem to be gathering a following here in Wisconsin somewhat more slowly than in other states and parts of the country, I have written about and practiced it for several years now. I have noted that mediation should be considered primary dispute resolution, and that the shuttle diplomacy type of mediation (focusing on positions rather than interests) brings to mind Sam Goldwyn’s declaration that “If you want to send a message, call Western Union.”

Facilitative mediation is not easy to do well. Arbitrators and neutral evaluators can sit back and let the parties develop and deliver their positions. Facilitative mediators must probe to find the parties’ true interests and to develop creative solutions to the problem. But I agree entirely with the Wisconsin Lawyer article authors who conclude that “With the help of a facilitative mediator, parties are often able to resolve their disputes without the expense, frustration, economic loss, and business and personal disruption entailed in pursuing litigation.” Amen to that.

Saturday
Apr062013

Neutral evaluation

Sometimes when I am called upon to mediate a dispute, what the parties really seem to be looking for is a neutral evaluation of their legal case or negotiating position. While I am happy to do that for the parties, I make sure to explain to them that this is different than mediation. It requires the parties to present to me, in summary form, most of their case. The parties need to consider whether or not they want to share all of that information with the other side, either directly or through me. If they do, it is really like non-binding arbitration. This can help the parties get a more realistic view of their chances of prevailing at trial and, therefore, promotes settlement. However, if the parties or their attorneys are not communicating well, a mediator may still be necessary to facilitate negotiations. On the other hand, if mediation is attempted and reaches an impasse, neutral evaluation may help to break the impasse.

There are no rules declaring what type of dispute resolution is best for resolving any particular type of dispute. It depends on the nature of the parties’ relationship and the dispute. It also depends on how much time and money the parties want to spend trying to resolve it. All of these considerations should be laid out and discussed before attempting to resolve any dispute. One size does not fit all. Your mediator should be familiar with all of the dispute resolution options and discuss them with you before proceeding. In Wisconsin, the statutes require a judge to discuss with the parties the desirability of alternative dispute resolution before trial. Don’t get tunnel vision and lock in on only one option. As I have said before, options are good. Keep them open.

Tuesday
Mar222011

Uncivil unrest

During the past couple of months, when I have traveled outside of Wisconsin or talked to colleagues and friends outside of the state, I have been asked what is going on here. With protests in Madison, the Packers winning the Superbowl, True Grit in the movie theaters and Hair on stage, I think it is 1968 all over again. But a New York Times Op-ed piece yesterday reminded me that it might be more like 1954 when attorney Joseph Welch asked Senator Joe McCarthy “Have you no sense of decency, sir, at long last?” McCarthy, then the junior senator from Wisconsin, exhibited the same aggressiveness, self-certainty, and indifference to contrary views that Wisconsin’s new governor, Scott Walker, seems to be employing in his first few months in office. And with Walker’s public opionion poll support slipping while his fellow Republicans in the state senate are facing the possibility of recall elections, the final results may be similar.

Lawyers, through their bar associations, have been discussing ways to combat and reduce incivility in our profession for many years. The broader business community and society in general now seem to be looking for ways to do the same thing. The legal profession is built on an adversarial model, where aggressive investigation, prosecution, cross-examination and defense tactics are the norm. Even in alternative dispute resolution proceedings, we see attorneys zealously representing their clients’ interests to the exclusion of competing interests. But in the legal arena, there is some kind of referee—be it a mediator, arbitrator or judge—to oversee the combat and keep the parties in line. In the political arena, no one seems to be in charge. And the U.S. Supreme Court has recently held that the First Amendment protects people’s rights to be indecent and uncivil in their public discourse. In Snyder v. Phelps, the Court said that because religious picketers near military funerals expressed their views at a public place on a matter of public concern, their speech was entitled to “special protection” under the First Amendment. But that protection extends to legal action in the courts of law. In the court of public opinion, I suspect that the Westboro Baptist Church is making very few friends.

Likewise, in civil litigation and disputes, one must ask how successful incivility and indecent tactics are. Governor Walker succeeded in getting the legislature to pass his bill restricting public employee collective bargaining. But the legislation is now tied up in the courts and the Republican majority in the state legislature could be challenged at the polls much sooner than expected. If the legal or political challenges succeed, they might provide the kind of reality check that attorney Welch delivered in 1954. Proving once again that what goes around, comes around.

Monday
Mar012010

A bad example

I have referred to the health care reform debate several times in this blog.  But it occurs to me now that it is a bad example of dispute resolution or mediation.  It has been a year since Michael Scherer called Barak Obama the “mediator-in-chief” in an article in Time magazine.  Despite the President’s considerable mediation talents, the negotiations seem to be going nowhere.  The reason, it seems to me, is that no one is considering the alternatives to a negotiated agreement.  Mediators are trained to get the participants to look at their best and worst alternatives (BATNA and WATNA).  But Congress does not seem to be doing that.  Why?  Because there is no sword of Damocles, no trial date, nor any deus ex machina that will resolve the issue one way or the other if the parties do not do it themselves.  Without such a final win-lose end game, the parties merely stick to their positions, waiting for the other side to blink.

So until someone figures out how to impose such an end game, I am going to quit referring to the health care reform debate as an example of mediation.  You cannot have alternative dispute resolution without alternatives.  Until someone figures out what those are, it is all politics. And that is very different.