It’s no secret that lawsuits are expensive, acrimonious undertakings that can severely erode both the finances and morale of building communities. When a disagreement between a resident and the board escalates into a serious dispute and the threat of litigation is brought into the mix, it can make a bad situation worse.

There are other alternatives, however from informal sit-downs between arguing parties to the more formal processes of arbitration and mediation. All are effective methods of resolving conflict without resorting to the courts—and Florida state law requires that disputing parties make use of them before bringing suit. Florida Statute 720.311 creates a requirement for pre-suit mediation followed by binding or non-binding arbitration under the Division of Florida Land Sales, Condominiums and Mobile Homes which is overseen by the Department of Business & Professional Regulation.

“Arbitration through the division's Arbitration Program is required for all homeowners' association recall and election disputes, prior to filing a lawsuit,” says Rebecca Storrow, Ph.D, the vice president of the American Arbitration Association (AAA) and former director of the AAA Florida Residential Mortgage Foreclosure Mediation Program. “Pre-suit mediation is provided by private mediators.”

So you have to at least try to work it out before you duke it out before a judge—that's a given. The question is which approach is most appropriate for your particular situation?

What’s The Problem?

Life would be so much simpler if there were no problems between residents and the board or among neighbors. It’s idealistic but about as far from realistic as you can get.

“Disputes or disagreements over assessments and fees are just a few points of conflicts that arise between condo boards and their residents,” says Dan Berman, a mediator based in Fort Lauderdale. “Others are parking issues, personal disputes between neighbors, pets, use of common areas like the pool, and violations of the rules and regulations, including improvements of changes done by the residents to their units that do not conform to the rules of the association.”

“There has been an interesting progression of conflict over the years. It has morphed from what used to be residents and boards ganging up on developers into boards being adverse to residents and vice-versa,” says Jerome R. Siegel, an arbitrator and mediator with over 25 years’ experience in Fort Lauderdale. “A lot of the conflicts have to do with improvements to the property, insurance issues, damage restrictions on uses of the property like walking your dog and not properly cleaning up after them and parking spots. These are the things that have always been associated with an apartment or condominium complexes. What also is happening more and more is that you have a lot more younger people moving into older associations and into older developments that they were previously not allowed into. It’s sort of, to some extent, like a family, when the family members are not agreeing with each other.”

“The top points of conflict usually originate as a result of the rules and how they are applied,” adds Kathleen A. Carr, a mediator based in Tamarac and former president of the Association of South Florida Mediators and Arbitrators (ASFMA). “An example would be that someone may be allowed to have some plantings on their patio and others are prevented from doing that because now they want to enforce the rules that they didn’t previously. So there are situations where these boards have changes in their leadership and some of the leadership does not always enforce the rules of the bylaws, so then they try to enforce the bylaws properly, and that sometimes creates conflict.”

Get Along or Get a Lawyer

Litigation can be expensive, protracted and anxiety-inducing but fortunately there is a better way. A few actually, including Alternative Dispute Resolution (ADR), which entails bringing in a professional mediator or arbitrator. But first, of course, management, or boards themselves in the case of self-managed communities, will probably attempt to resolve the issue in-house.

The mediator seeks to create a calm, productive environment that encourages listening and understanding by defusing defensive anger that results from the individuals feeling that they are not getting their needs met or having their say.

“ADR is quite effective in resolving disputes and has many benefits over prolonged litigation,” says Berman. “Some of the benefits of ADR, specifically mediation, is low cost. Mediation often only takes one day or part of the day whereas litigation can last many months or years and include costly and lengthy depositions, motions and court appearances. There’s also the ability to control the outcome. In mediation if a settlement is reached it is what the parties themselves agreed to and not what a judge ordered. There’s also the ability to participate in the process. In mediation everyone has a voice and a full chance to express their issues and concerns. This does not always occur in court or litigation. Also, another significant advantage to mediation in a condo dispute is that since it is a less adversarial process, if a settlement is reached the parties are more likely able to go forward with a peaceful co-existence since they themselves settled their dispute.”

“The beauty of mediation is whatever is said or produced during the mediation process is confidential so it can’t be used in court. No one can say ‘Judge, they said this in mediation’ ” adds Siegel. “The beauty of mediation is the ability to openly try to resolve things more so than you would be able to do in an arbitration case. So the rules of mediation really don’t deviate as far as that’s concerned. It deviates on the actual parties that are involved. Whatever is said in the room stays in the room and that’s one of the reasons why it’s so effective.”

The primary difference between arbitration and mediation is that arbitrators hand down decisions just as judges do, which can be challenged under certain circumstances.

“Arbitration is when the parties predetermine to select a neutral third party and that neutral third party has the power to make a ruling that is binding on both parties,” says Carr. “The parties agree ahead of time and the arbitrator has the authority. Whereas in mediation the mediator becomes a party that encourages communication between the two parties and has no right to impose or enforce a decision so it’s called self-determination. The mediator is there to facilitate self-determination. Each party talks to each other and the mediator acts creatively to try to listen to each party and see if there is opportunity there for them to come together and to encourage that dialogue. The settlement is created by the parties rather than enforced by a neutral third party in the case of arbitration.”

Plan A: Do It Yourself

When a complaint first comes in from a unit owner against another unit owner, management will check to see whether the behavior is in violation of the bylaws, and then if it is, try to determine whether the accused knows it is against the rules. In any case, before intervening in the dispute, the manager might suggest the aggrieved party reach out to their neighbor, politely explaining their discomfort with a particular behavior.

If the behavior persists, and especially if tension escalates, the manager might send a letter to the accused describing the complaint. If the accused is acting contrary to the bylaws, it will demand they stop the behavior—for example, stop playing music loudly after 10:00 p.m.—or face a fine or other sanctions.

Some managers bring the parties together at the first sign of obstinacy. If that happens the manager should set an agenda and guidelines for the meeting and set a tone that encourages safe discussion. If that doesn’t work it may be time to bring in a professional.

“Typically, most of the larger boards/buildings have attorneys on retainer and they should contact them as soon as any major dispute or legal issue arises,” says Berman. “The board should consider giving a directive to their attorneys that they would like them to try mediation first before going into any protracted litigation on most disputes. The attorney can then make the arrangements and hire a mediator. For smaller buildings and associations that do not typically hire attorneys they might consider approaching the person (s) who the dispute or issue is with and offer to contact a mediator and schedule a mediation before the issue gets too big that litigation is the only course of action.”

“Ideally a board or building manager should be proactive to create a process under which a mediator is available to them. It may be through a panel or through a local association,” says Carr. “The bottom line is that they then look at the situation and determine whether the discussions that have taken place have failed to come to some opportunity for solution, and in that case they should call in someone. A good board will be proactive and call them in earlier rather than have a situation rise to acrimony.”

Does it Work?

While there are no hard numbers comparing ADR to litigation one thing is for sure: ADR has the potential to save a fortune as compared with litigation. Mediators charge in the range of $200 to $300 an hour and according to experts, mediators report an 80 percent to 90 percent success rate.

Experts believe that the best way to deal with a hot dispute is to bring in a professional before the lawyers are committed and lawsuits are filed.

“ADR is very effective because it prevents many cases going before the courts because that is a protracted process,” says Carr. “ADR allows people to play a part in the outcome of their solution rather than having a judge impose something.”

Steve Cutler is a freelance writer and a frequent contributor to The South Florida Cooperator.