Published: Autumn 2007
When allowed to fester, small disputes can escalate and can eventually turn a tranquil community into an armed camp where neighbors refuse to talk to one another and litigation becomes almost inevitable. If a board addresses these problems as they arise, it is often possible to defuse the hostilities. But when the board or management find that their best efforts to facilitate a resolution have failed, CNYC encourages the use of mediation (see page 7 and Conference workshop 202). The City Bar Association has established a mediation program where attorneys familiar with cooperatives and condominiums are available to help bring disputants to agreement and avoid more costly litigation. William Struyk, a co-chair of the City Bar's joint committee on the Co-op / Condo Mediation Project describes the service in the following guest article.
Do board members and your managing agent spend an inordinate amount of time trying to deal with owner disputes?
Is your building’s annual budget saddled with a big litigation expense line item?
The New York City Bar Association launched a new mediation service for resolving residential disputes quickly and amicably which may be useful to the co-op and condo community. The City Bar’s Co-op and Condo Mediation Service offers owners, sponsors, managing agents, and boards of directors a simple and efficient way to settle disputes by bringing the parties together with a trained neutral mediator. The parties negotiate in good faith to reach a mutually acceptable resolution to the dispute, with the mediator guiding the negotiations. In addition to being faster and less expensive than litigation, mediation provides the following benefits:
- Mediation may proceed even if a lawsuit has been filed. (If the parties settle the dispute in mediation, the lawsuit is withdrawn.)
- The parties drive the settlement process and mutually determine the outcome; they don’t give up control to a judge/jury.
- The parties are not bound by rules of court procedure and rules of evidence; the parties get the opportunity to vent and tell their stories in full.
- The mediator can meet privately with each party to gain an understanding of core issues and attitudes that might not be easily discussed in open court.
- The settlement agreement can be based on views, opinions, tolerances, timing factors, etc., rather than strictly on statutory law applied only to the evidence presented in court.
- Settlement by mediation is forward looking aimed at all parities coming to a mutually acceptable resolution, whereas litigation looks backward and results in one party “winning”.
The New York City Bar is a premier professional association for attorneys which has a distinguished history of commitment to proactive involvement in legal issues and processes. Procedurally, here is how the City Bar’s mediation program works:
- All parties involved to the dispute must agree to try mediation – mediation is voluntary and can only begin if all agree. Then they sign an Agreement to Mediate form which is returned to the City Bar with a nonrefundable administration fee of $100 per party.
- The City Bar will next send each party the names of five trained mediators together with their respective bios and hourly fees (which range from $125 to $400 an hour). The mediator’s fees are usually shared equally among the parties, or the Co-op or Condo may pay the mediation fees in order to get the parties to the table.) The parties choose two acceptable mediators, and the City Bar contacts both to see who is available sooner.
- The mediator contacts the parties to set up the time/place for the first session.
- As the process is voluntary, any party can stop the process. If the process is successful, a written settlement agreement is signed by all parties which is then enforceable in court.
Mediation is extensively used in matrimonial proceedings, employment disputes, and some areas of commercial litigation. It is ideal for housing disputes which often involve quality of life issues or maintenance complaints that matter very much to the persons involved. Litigation is expensive and time consuming, with the lawyers who are trained to be adversarial often making the matter worse, whereas mediation often resolves the dispute in just one or two short sessions of 2 or 3 hours; indeed, mediation has about a 70-80% success rate.
For more information, go to the City Bar’s website home page at www.nycbar.org, click on Publications, then Brochures and select “Mediate Don’t Litigate” from the first section called “Alternative Dispute Resolution”, or call Rebecca Nelson at 212 382 6660 and to request a copy of the brochure.