Sometimes in the heat of the moment, when disagreements are at their worst, the possibility of solving a problem without going to court seems remote at best. Arguments may have been brewing for days or weeks with each side becoming more and more entrenched in their own rationale and reasoning. Lines may have been drawn in the sand and threats of litigation hurled with reckless abandon.
“Condominium and homeowner association folks know that conflict is a pretty common occurrence,” says Jill S. Tanz of Chicago Mediation LLC. “And most of the time, conflicts that come up can be resolved either by the manager or the board negotiating informally with the groups that are in conflict. You can usually take care of it pretty simply,” with what's commonly referred to as alternative dispute resolution—either arbitration or mediation. The difference between the two, says Tanz, is that “arbitration is normally a binding process where both parties expect a decision. Mediation is non-binding and voluntary.”
Charles Castagna of the Clearwater, Florida-based firm Charles N. Castagna Mediation, Inc., adds that, “Arbitration is more of an adversarial process. The arbitrator makes a decision while the mediator does not. With mediation, the parties have an option to disagree and say no, I don’t think I want to do that.”
Arbitration can almost be thought of as a “mini trial,” says attorney Paul Milberg, a senior attorney with the statewide community association law firm of Katzman Garfinkel & Berger, with offices throughout Florida. In arbitration, the person leading the meeting “will determine who is right and who is wrong and the decision is binding,” Milberg says. “Mediation is more like a settlement conference. You have a certified mediator who listens to both sides and just tries to work it out so we don’t have to go to litigation.”
And most of the time, Castagna says, both sides “are able to come to an agreement.” Tanz outlined some of what can or cannot be disclosed in the process. “The process is usually controlled by the mediator but the results are controlled by the parties,” she explained. “The parties maintain the full right to decide whether or not they want to enter into an agreement for the solution that’s been worked out. Mediation is a confidential process: it’s confidential on two levels, first of all, the mediator cannot testify in court as to what goes on in the mediation. That’s protected by statute here in Illinois. On top of that the parties can agree that they will not reveal what went on in the mediation.”