Working Towards a Resolution Mediation and Avoiding the Costly Lawsuit

 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.”  

Read More...

Related Articles

Q&A: Inserting ADR Into the Application

Q&A: Inserting ADR Into the Application

Six Big Things Attorneys Wish Boards Knew

How Do You Measure Up?

Property Management Software and Apps

Tools of the Trade

 

Comments

  • How does a party go about asking for a meiadtor? My husband and his ex-wife were assigned a meiadtor a few years ago, but she has since resigned, and at the time there were no issues with the parenting time. Another meiadtor had not been assigned. In the past couple weeks, the ex-wife is saying she is refusing to send the children for the court ordered parenting time of spring break. Father is out of state and has already purchased his airline tickets. The case is in Marion County. Thanks.