Mediation, Mitigation or Meditation, Which Works Best For An HOA Dispute?

The 3 “M”s. Each has value in and of itself in finding solutions. I published an E-newsletter a few months ago (archived at californiacondoguru.com) on mitigation that was fun. The concept in my mind was triggered by an art teacher who confused my remarks about being a mediator to referring to me as a mitigator. It was fun to write and think about it as a separate concept. Look up the newsletter if you want to read more on it. For now, here are some short notes about how any of these processes might assist you in resolving any dispute, whether you are on the Board side of the proverbial “table” or the owner side.

Mediation. This is a facilitated process whereby the parties in dispute meet with a neutral, someone trained I hope, in mediation, because that could make all the difference. The neutral helps both sides see if coming to an agreement is possible. The benefit is that the mediator can hear things neither party hears because of the positioning that has gone on escalating the dispute to a seemingly unresolvable place. Kind of like where we get with family and friends sometimes, huh. The presence of a neutral is usually calming to the process and that assists with listening and feeling heard. These are critical parts to the solution of any dispute. A good mediator is worth their weight in gold (and can save you that much money if you agree to the process with a desire to settle things with the other party and be able to move on). In my experience some judges are very poor mediators because they want to drive the bus, meaning strong arm the parties into settling. Not all, but some. Also in my experience unless a community or neighborhood mediator has some knowledge about and respect for CC&Rs and the importance of preserving the integrity created by them, such a facilitator can, while assisting the parties into coming to agreement, create more problems by breaking down the foundation upon which the development was created. Mediation is always a better option than court. People think they will finally “be heard” in court. If you have ever been part of a court proceeding or even watched some, you will probably get a new understanding about how the parties are actually muzzled in this process. It’s not like TV drama where the “victim” gets to tearfully recount their story. It becomes a debate between lawyers.

Mitigation. This is by definition is, “the action of reducing the severity, seriousness, or painfulness of something.” If you are distressed and get the advice and assistance of a trained and experienced service provider (like a good lawyer), you may be able to identify a way to diffuse the disagreement so that the parties can see through the fog to recognize a solution.  And, I have always been a strong believer in the statement “education is power.” I have counseled many homeowners and minority board members on the value of fully understanding all options before plunging ahead. You can find out about how to arrange a telephone consultation at californiacondoguru.com.  I counsel individuals as well as boards all over the state of California on how to resolve disputes.

Meditation. This is a gem of a process that quiets the inner you. I know it seems too “touchy feely” for some but I am a strong proponent in word and deed. Being able to breathe equates to being able to think. Have you ever found yourself holding your breath when you are angry? I have talked to many individuals who have been “holding their breath” for years, enmeshed in a fight that is going nowhere. They are generally headed down a path toward ill health (if they are not already there) related often to a lack of oxygen and blood flow to important organs, like the brain. This may sound facetious, but honestly, try it, you will like it.

I know these are not FIGHTING LAWYER-LIKE like tidbits, but I have seen my role for many years as a facilitator of resolution. I get the most pleasure from being a lawyer with the knowledge, experience, and temperament to recognize the value of seeking resolution outside court. I have been on the inside of a courtroom and find it to be like a dark cave where everyone is severely limited in options, process and solutions, and where the parties pay a high cost to be immersed in stress and frustration, simply for lack of control over anything. In any of the above processes, the parties retain control while seeking solutions. That is my preferred state of “being”.

 

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