How to Resolve a Dispute with Your HOA Board

WOULD YOU CHOOSE TO GO TO WAR - IF YOU HAD A CHOICE?

Filing a lawsuit is a declaration of war! If you are a peace-loving individual, or don't have the resources to fund a war, then you certainly ought to consider all options before issuing your proclamation. It is very difficult to turn back the processes once a lawsuit is filed. You cannot even drop the lawsuit in an HOA case if you find it is breaking you financially or emotionally, or the evidence is against you is overwhelming, without risking having to pay the other side’s attorney fees.

This article is all about ADR. ADR means Alternative Dispute Resolution – exploring alternatives to litigation for resolving disputes. There are several types: voluntary (including negotiation, IDR and meet-and-confer options), contractual, statutory and court-ordered (which occurs after a lawsuit is filed). Use of an ADR process to solve differences can be a way to avoid starting and being sucked into continuing war. As Americans often involuntarily engaged in fighting other people’s battles, we know how that feels. As individual disputants in an HOA, you have a choice.

Most of my advice to boards and owners in homeowner associations focuses on finding ways of settling disputes without resorting to litigation or forcing the other side into it. Most people have success with approaches alternative to litigation when they follow through. Bullying, aggressive, or offensive behavior doesn’t lead to a good resolution. It usually widens the chasm of differences.

Whether you are on the board or an owner with a beef, never underestimate the value of a face-to-face meeting where a civilized discussion can take place. Boards sometimes feel that their volunteer time is not worth giving members an extra moment (especially the "pushy" members) and owners feel the same when there is someone – or more than one – on the board they don’t like. While the concerns are understandable, it is also almost certain that both or all parties involved end up spending a lot more time and money than they ever imagined possible if they end up in court without first giving a meeting with a good intermediary a try.

Take heart of this gratifying message from a client: "Hi Beth, I want to report that we finally have a happy outcome from my IDR meeting with a member of the Board of Directors. I presented my case and explained why I thought their rules and rules enforcement were flawed, and that I was being treated unfairly. After some discussion they agreed not to impose discipline and I agreed to help by providing information that would help them correct the flaws in the rules. Thank you for your advice and counsel over the past several months. We have gotten what we wanted, and we now can avoid the threat of legal action. This is exactly the type of outcome that you have publicized on your web site if we follow your advice. I wish you well but hope that I will not need your services again.”

I am happy for this client. In her case California’s “meet and confer” law for homeowner associations, often referred to as IDR, worked. In California, if an owner asks the board to meet and confer, the board is required to meet with the owner, or if a meeting date is not on the near horizon, a board may appoint a director or directors to meet with the owner. The law is currently located at California Civil Code Section 1363.810. It works in practice, and could be a useful model for other states as well.

However, “un-facilitated” meetings aren’t always productive. Sometimes the barriers, emotions, and/or fear level make it difficult or impossible for the parties to envision such a meeting. A facilitator does not have to be a licensed psychologist or attorney. The neutral party invited in just needs to be someone trained at facilitation and, preferably, mediation. There are various types and various formulas that make mediation work. And if someone has learned the way people need to “process” hard feelings, and what bridges are needed to get from one step to another to make progress, then they can usually help the parties. The formulas and specialized training help to make sure the parties feel like they are “being heard” and allow them to become part of the “solution.” A statement like “I’m easygoing and I can fix this by talking to them,” attitude can exacerbate the stress. “Talking” to people and telling them what needs to happen doesn’t always work. Talking to each other often does. And none of this happens when someone comes in to judge the parties, especially in court. A judge or arbitrator makes a ruling, and no matter how much it helps or hurts the overall situation, the parties have to live with it. This is why in disputes relating to homeowner associations participants are better served in mediation. The parties can define the solution, instead of placing it in the hands of a stranger with an often ego-driven motive.

California Urges Resolution in Neighborhood Disputes

Speaking from courtroom experience, trying emotional HOA fights are not really well received by the judiciary. Judges are better at assessing damages than deciding whether people should stop fighting and why. Legislators in California stepped up years ago and provided some “motivation” for owners and boards to resolve differences outside of court. A specific process was written into law that requires a disputant to seek to engage the other party in mediation or arbitration before a lawsuit can even be filed. Enforcement-type disputes are the focus of the law.

This statutory mandate is currently found at Civil Code Section 1369.510 and the following series. The California model for homeowner associations and homeowners is a good one. Any party that has a beef with their neighbor or the board, or vice versa, must – before filing in court – attempt to engage the other side in ADR. They have to file a “Request For Resolution.” The other side can accept, ignore or reject. (Ignoring a request equals rejection.) The law specifically applies to any owner or board that wants to bring a complaint for injunctive relief (seeking a court order) or declaratory relief (seeking an interpretation of the law or the governing documents provision), coupled with a request for damages (money) of less than $5,000. If a party goes directly to court without taking the steps required, a lawsuit may be dismissed. And even more compelling, a right to reimbursement of attorney fees and costs, otherwise available to a prevailing party, could be refused by a judge if that party was unwilling to participate after being asked to engage in ADR first. The clear message: “Don’t bother the courts until you try to settle this at home.”

Under the California incentives to use ADR processes, the parties share the costs equally. ADR has been around longer than the newer IDR process. ADR methods generally include conciliation, mediation, or arbitration. Conciliation means the sides agree to turn resolution over to a neutral who would offer them a solution. Mediation involves the parties meeting with a neutral facilitator and each other, and resolution at mediation is by voluntary agreement. Arbitration is like court; a hearing officer makes a decision. The law in California that provides “incentive” to try alternative processes before court, and as described above. IDR and ADR are both good models for dispute resolution in any HOA.

Currently found at Civil Codes 1363.510 et. seq. and 1369.810 et. seq., it is important to note that the Davis Stirling Act is being moved to Civil Code Sections 4000-6150 if you want to look these laws up. The California Law Revision Commission at www.clrc.ca.gov has a conversion chart on their website, and I have links to that and other charts as well on my own website.

Use of ADR on the rise.

It is clear that people everywhere are looking for alternatives to costly, painful, and protracted, relationship-damaging court battles. Even family lawyers and employers are finding that the continuing nature of a relationship must be understood and preserved to the extent possible. The high cost of losing in (or even going to) court often triggers hatred, spiteful behavior, and revenge.

I was around when the first California ADR statute was passed, and a vocal advocate of mediation, and I hoped that the advent of the ADR laws in California would boost the level of processes alternative to litigation. Many hoped that it would help alleviate congestion in the courts. However, in the beginning, as is the case when any “cottage industry” leaps up too quickly to take advantage of demand, a lot of the services were ill prepared to handle HOA disputes. Neighborhood mediation had been going on for years, but when you throw the HOA into the mix, the integrity of recorded restrictions cannot be ignored. They are the glue that holds the association together.

In HOAs where disputes pit neighbor against neighbor or board against owner, or vice versa, it is the kind of matter that begs for a process that preserves the relationship and avoids breaking down the structure built into the documents and rules. In an HOA people simply have to go on living together, for better or for worse, sometimes in very close proximity, for a long, long time. They cannot easily relocate like in an apartment, or get a divorce and move on. Sometimes they cannot avoid seeing each other every day. The best way to resolve differences is to get disputants into a voluntary process whereby they are “encouraged” to speak their issues out loud, they are “encouraged” to listen to their neighbors or the HOA directors, and they are “invited” to participate in the best solution, given they need to go on living right where they are. This empowers people in an incredible way, and empowered people feel less like victims, angry or spiteful for having to let someone else decide their fate.

Most states have promoted ADR efforts – either within the courts or, even more common, through special arbitration or mediation programs. In California, for example, a portion of all court-filing fees is offered to local dispute-resolution groups, who can apply for grants. The purpose is to ensure that communities have low-cost ADR services available close to home for would-be litigants. This is likely true in other states as well. The courts tend to be clogged and judges tend to get disgusted with folks that can’t figure out a way to kiss and make up. Several voluntary mediation programs are offered by the Courts and I have served as mediator in both voluntary as well and court-ordered mediations.

Contract disputes are understandable to a lot of judges, where CC&R disputes (a contract, but of a nature other than dollar-driven) tend to confound the legal system. When someone has to listen to the person above clickity clack on high heels on the wood floors, or let their several dogs (or teenagers) stay up all night horsing around and making noise just on the other side of the bedroom wall, or turn their bass up on the stereo such that it rumbles the room below, few judges want to hear about it. On the other hand, mediation brainstorming can lead to solutions no judge would ever figure out.

People get stuck and need solutions.

Years ago in Texas, the Community Associations Institute (Greater Houston chapter) partnered with the Better Business Bureau in a program that made available more than 30 trained mediators to work on association disputes. In Ventura County a very good friend and colleague built up the Ventura Mediation Center that offers trained personnel from various walks of life. In my own county in California I worked with the Conflict Resolution Panel for several years as a volunteer mediator. It is one of the groups that receives court fees to cover operating costs and pairs mediators (those learning with seasoned veterans) to handle neighbor to neighbor and association to neighbor disputes. I was often paired with another for the more difficult mediations because we were both considerably experienced with group situations. I was a 40ish tall blond woman lawyer, in contrast to Carl’s 66ish short round African American retired- school-superintendent status, and we successfully conducted many group mediations. If one of us wasn’t connecting, the other usually was. We dealt with several tense group situations where a bunch of neighbors were having trouble with an entity like a school district or HOA, or neighbors along a waterway were fighting over the water, or the number of cars in the court, or something like that. We conducted one particularly tough mediation on Super Bowl Sunday in about the year 2000 in a room in the local hospital. One side was a reputed-to-be-scary alcoholic retired man who was very bitter that the school had built a daycare facility across from his home. His open view of the hills for 32 years was now blocked by a tall, block-type building topped with an unsightly air conditioning unit, antenna, and building roof facilities. The other side was the school and its daycare provider.

This man had been seen dumping garbage can debris on cars blocking his driveway as they waited in line to get into the parking lot and was seen standing in his driveway staring down children and parents with binoculars – hardly crimes. But he was also suspected of gluing glass shards under the handrails to the day care center in the dark of night and scattering glass on the small playground, although he had not been caught in the act. The school and police were baffled about what to do about this situation. Thanks to Carl and I, and this man’s loving and also frustrated wife, and the fact that he had painted himself into a deep corner with seemingly no way out, a mediated solution prevented the filing of a court action the next day. The solution was agreement by school officials and the property owner allowing the man to have input with regard to plantings around the facility adding some green and flowers to the view, and attractive screening of unsightly systems on the roof of the building. This is the kind of solution that can avert legal action that would otherwise clog the court and lead nowhere. School officials were at wit’s end, ready to try their luck in court, to get orders preventing a person from doing things they could not even prove he was doing.

Bad experiences with ADR aren't unheard of, but, still, they can't hold a candle to bad litigation stories. ADR doesn't work in every instance, but, given a chance, it's often less confrontational, less demanding, and the majority of the time much more satisfying in the end resolution.

The Absolute-Without-A Doubt-Best-Solution for Neighborhood and Most HOA Disputes is Mediation.

I could explain the various forms of ADR in more detail, including arbitration (binding and non-binding) and conciliation (turning the dispute over to neutral to decide), but mediation (not to be confused with meditation) is by far the best way to empower, satisfy, and help the disputants help themselves, which tends to lead to the longest lasting solutions. Arbitration is perhaps the widest known form of ADR – but it is best utilized in a situation where the disputants want to hide behind someone like an attorney advocate. Or the parties want a decision-maker to “punish” the other party. In arbitration, only one side can “win” and there is case law in California holding that even when the arbitrator makes a glaring mistake that hurts the winner (the prevailing party), the decision stands. The rationale given: because the parties chose the abbreviated and less expensive process they have to live with the result.

This is not so with meditation. The process is not over until the party’s over. The party’s over when the disputants agree on a solution. Sometimes they do not get everything they want, but sometimes they do, since mediation tends to be “interest-based” instead of punishment-based, where one party has to be right so the other can be judged wrong. Sometimes in the course of the process someone figures out that agreeing to resolution is far superior to continuing to suffer economic expense and stress. Sometimes through hearing other’s perspectives, a person’s field of vision opens up dramatically. Here is one dramatic example:

The HOA’s park is usurped by gang members, friends of two 17-20ish brothers in a Spanish-speaking family. The HOA board made pleas, and ultimately threats of enforcement – fines, etc. – but were never even sure if the communications were shared with the non-English-speaking parents. Residents were pressuring the board to do something. Most directors were afraid of the family. The HOA board worked with me and I worked with the family’s attorney to get the parties face to face. We used a room at the local PD. The board sat on one side with me, the humble and frightened parents and very belligerent two older sons sat on the other side with their attorney. The younger teen son who was not at all friendly but was willing to act as interpreter between his parents and the directors was on that side too. Once the board members began to talk sincerely about how the conduct of the strangers in the park was scaring residents, and their words were translated to the parents, the ice began to break on the other side. The younger teenage son who was drawn toward his brother’s unsavory behaviors, was also very torn that his parents were having to suffer extreme financial and emotional drain over the situation. They did not have a lot of money for a lawyer. He spoke with and for his parents and surly older brothers, and to the directors, and ultimately unwittingly became the bridge that helped everyone get to the solution and agreement. The final outcome: the boys’ and their friends would gather somewhere else outside the development.

Choosing a Mediator.

The parties generally choose the mediator based either on a referral or on the expertise and experience of the individual; if litigation is involved, the mediator might be court-appointed. The process is confidential. In fact, the mediator will ask the parties to sign a confidentiality statement agreeing that they will not repeat what was said in the session or use the substance of the mediation discussions in court against the other party. Mediation is generally considered a nonbinding process, meaning that the parties have other options if it doesn't work.

Mediation is a good process to use for dispute resolution when one party has an ongoing relationship with the other party – for example, in an HOA. It is among the least expensive alternatives and one of the most successful, especially when all of the parties appear voluntarily, even if they come in swearing it won’t work but really want to get to resolution without any idea how to get there. Based on some statistics I have seen, the success rate for mediation is between 65 and 90 percent – lower for court-referred mediations, higher for privately convened ones. I understand this gap. My own experience is that attorney advocates can get in the way of parties settling on a resolution. And court-ordered mediations force the parties together even when either, or both, are highly opposed to coming.

Mediators do not have to be attorneys. Most attorneys are trained advocates, not trained facilitators, and not even trained “counselors.” And those that train for mediation sometimes have to give up advocacy, because resolution-solution based thinking conflicts with the “fight-to-win” or “I can’t make a living unless people continue to fight with each other” mantra. And there are cases where not being an attorney can work to one’s advantage if the disputants have a “thing” against attorneys. A lot of people distrust attorneys. It’s true.

My own experience in volunteering for the courts was that success was elusive. In most cases, the attorneys came without their clients, unprepared and certain it wouldn’t work, and so it didn’t! They just wanted me to sign off so they could “get back on the court docket.” Perhaps it is more sophisticated and successful today. This was 20 years ago when mediation seemed to be “the best kept secret” in the courts. At the same time I was involved in the court programs, early in my career when I was diligently studying mediation, I was doing volunteer community conflict resolution work as well, and the rate of success in those mediations for me was 100%. If we could get the parties to come to the table, we could get the parties to come up with a resolution that was agreeable.

Speed is a very big selling point for mediation because mediations can generally be arranged much more quickly than court processes or arbitration. HOA and neighborhood disputes often can be settled in four hours or less. In my experience, the mediator can generally tell if there is any hope of resolution about 3 hours into the process and thus has a sense as to whether continuing, rescheduling, or really having a heart-to-heart in caucus (meeting separately with the parties) is indicated.

Hopefully the information in this article will help readers understand that mediation can be a glorious resolution process whereby disputants are invited into a comfortable and safe setting, are given the chance to articulate their thoughts and beliefs without interruption and to hear what the other side’s thoughts and beliefs are (i.e., “to be heard”), and where they are given the grand and empowering opportunity to help formulate the final resolution. I have had a lot of experience coming into a room where the parties were tense, distrustful, and hesitant. I have seen most disputants leave the room as “conquerors” in their own right because they were the masters of their own solution, with a lightness in their hearts because the fight is over. None of this happens in court. None of it.

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