MAKING PEACE IN THE EYE OF THE STORM
CNYC thanks Julie Marcus, Director of Program Development for the
American Mediation Council, LLC, for the following guest article.
No cooperative or condo board expects to be caught up in costly, possibly
ugly disputes in unknown future situations. Yet conflicts between neighbors
do occur, and many face the expensive and destructive adversarial processes
of arbitration and litigation that most commonly result from trivial disputes
that escalate out of control.
Eighteen million civil lawsuits are filed in the U.S. each year. And
$80 billion in direct legal costs, and many billions more in indirect
costs, are spent fueling those lawsuits.
DON'T LITIGATE, MEDIATE
It doesn't have to be this way. It is possible -- in fact, critical --
to protect your cooperative or condominium from the drain of money, time
and precious personal energy that results when disputes become adversarial.
Generally, the mediation begins with a joint session attended by all
participants. A confidentiality agreement is signed and each party summarizes
its position on the key factual and legal issues. The mediation process
is nonbinding until the parties agree to make it so.
The joint session is followed by confidential caucuses between the mediator
and each party. The mediator assists each party in evaluating its position
and in assessing alternatives for resolution. Due to the confidentiality
of the caucuses and the voluntary nature of the process, the parties retain
control over what information is shared, which options are discussed,
and the terms of the ultimate agreement.
The end result of the process is a written settlement agreement. Most
disputes are settled within one day, and often leave the door open for
further constructive action among the parties.
The compelling logic of using mediation fundamentally changes the way
professionals view and resolve conflict. American Mediation Council founder
and president, Susan Bird, cites seven reasons for choosing mediation:
1. Control. Unlike arbitration and litigation, a mediated dispute is
not left in the hands of an unpredictable third party whose decision is
binding on the parties. The parties to mediation choose whether or not
they will be bound by the results of their mediation.
2. Speed. Most matters are resolved in a matter of hours, as opposed
to weeks, months, even years of litigation. Even complex issues involving
multiple parties can be resolved in a fraction of the time of litigation
3. Economy. Mediation can resolve disputes in an extremely cost-effective
manner, in contrast to the expense, disruption and distraction of litigation.
Even an unresolved mediation may prove economical by abbreviating the
discovery phase of litigation and defining the remaining issues.
4. Privacy. Mediation proceedings are strictly confidential. No public
or legal precedent is set. The mediator may not be called as a witness
in any litigation involving the issues that are mediated.
5. Preserved Relationships. Mediating parties learn that addressing rather
than suppressing conflicts opens the lines of communication, and prepares
people to fashion realistic and workable resolutions without necessarily
destroying the relationship between parties.
6. Tailored, Creative Solutions. Because the process of mediation is
not limited to "money" solutions, resolutions can be tailored
to meet the unique circumstances of the parties.
7. Finality. Resolutions reached through mediated negotiation generally
are followed because the participants are involved in crafting the solution
to their problem.
Rather than waiting until your cooperative or condominium is involved
in a dispute to take advantage of mediation, you can bring the process
to your building by adding a mediation clause to all contracts and by
amending your corporate documents to require mediation of disputes. Typically,
the clause will provide that the parties mediate first, before resorting
to binding arbitration or to litigation.
A sample clause is available from the American Mediation Council, a nationwide
network of attorney mediators who joined forces to promote mediation based
on their belief that lawyers, at their best, are problem solvers, skilled
at avoiding conflicts and resolving those that inevitably occur. AMC can
be reached by phone at (203) 622-1448 or by e-mail at firstname.lastname@example.org,
and has mediation available in New York City.
The Association of the Bar of the City of New York will soon be offering
similar mediation services. The Committee on Cooperative and Condominium
Law and the Special Committee on Alternative Dispute Resolution have instituted
a new pilot project for the voluntary mediation of disputes involving
cooperatives, condominiums and their residents, owners, managers, officers
and employees. Administered through the Association of the Bar, its services
will be available in the fall. Both parties to a dispute must agree to
participate and to share the modest cost of the mediation. For more information,
including a copy of the project's guidelines, contact Laurie Milder at
There are also many private individuals and groups that will perform
mediation services for cooperatives and condominiums.