Mediation
Also see: Arbitration; Dispute Resolution
Short Answer
A dispute resolution mechanism intended as an alternative to formal court proceedings and in which a third-party mediator assists the parties to find a fair resolution to the dispute between them.
Definition
Mediation is an informal dispute resolution process that is used in the context of many types of dispute to help people avoid many of the costs, intensified acrimony, delays and other stresses associated with more formal legal proceedings (i.e., arbitration and court). It is especially useful where the parties have some common interest from which a basis for a fair, and preferably "win-win", resolution can be found.
In mediation proceedings, the parties select the mediator, and the process is generally conducted by agreement between the parties and remains confidential. The content of mediation meetings - the facts and feelings discussed - generally should not be available to be repeated against the person who expressed them even if the mediation fails and there are further or other legal proceedings. The parties' willingness to "come to the table" to discuss their differences in this open and respectful manner is, in and of itself, a basis for the possibility of successful mediation.
Section 132 of the Condominium Act, 1998 (the "Act") provides that in certain situations mediation is mandatory. The concept of mandatory mediation may seem to be an oxymoron, since the voluntary participation of the parties seems essential for the success of the process. It may be considered, however, that the purpose of mandating mediation is to provide helpful instruction to the parties - to remind them that, by virtue of their shared or common interests in the success of the condominium, they ought to be willing to mediate and find a fair resolution to their dispute.
The contexts in which the Act makes mediation mandatory are:
(a) disputes relating to agreements between a declarant and a condominium corporation;
(b) disputes relating to agreements between two or more condominium corporations;
(c) disputes relating to agreements made pursuant to section 98 of the Act;
(d) disputes relating to agreements between a condominium corporation and its property manager;
(e) disagreements relating to the declarant's first year budget and the obligation to be accountable for the same; and
(f) disagreements between a condominium corporation and an owner with respect to any of the governing documents.
It is not possible for condominium corporations, unit owners and declarants to "contract out" of these obligations.
Where mediation fails, arbitration is the next step. For information about this process, see the Condopædia article, "Arbitration".
Note that mediation is not required for disputes relating to the provisions of the Act itself. In such cases, arbitration is also unnecessary and the parties can bring an application directly to court. However, this does not mean that mediation and/or arbitration cannot, or should not, be attempted in regard to such matters, if the parties believe there is a reasonable chance of reaching an agreeable resolution.
In mediation proceedings, the parties select the mediator, and the process is generally conducted by agreement between the parties and remains confidential. The content of mediation meetings - the facts and feelings discussed - generally should not be available to be repeated against the person who expressed them even if the mediation fails and there are further or other legal proceedings. The parties' willingness to "come to the table" to discuss their differences in this open and respectful manner is, in and of itself, a basis for the possibility of successful mediation.
Section 132 of the Condominium Act, 1998 (the "Act") provides that in certain situations mediation is mandatory. The concept of mandatory mediation may seem to be an oxymoron, since the voluntary participation of the parties seems essential for the success of the process. It may be considered, however, that the purpose of mandating mediation is to provide helpful instruction to the parties - to remind them that, by virtue of their shared or common interests in the success of the condominium, they ought to be willing to mediate and find a fair resolution to their dispute.
The contexts in which the Act makes mediation mandatory are:
(a) disputes relating to agreements between a declarant and a condominium corporation;
(b) disputes relating to agreements between two or more condominium corporations;
(c) disputes relating to agreements made pursuant to section 98 of the Act;
(d) disputes relating to agreements between a condominium corporation and its property manager;
(e) disagreements relating to the declarant's first year budget and the obligation to be accountable for the same; and
(f) disagreements between a condominium corporation and an owner with respect to any of the governing documents.
It is not possible for condominium corporations, unit owners and declarants to "contract out" of these obligations.
Where mediation fails, arbitration is the next step. For information about this process, see the Condopædia article, "Arbitration".
Note that mediation is not required for disputes relating to the provisions of the Act itself. In such cases, arbitration is also unnecessary and the parties can bring an application directly to court. However, this does not mean that mediation and/or arbitration cannot, or should not, be attempted in regard to such matters, if the parties believe there is a reasonable chance of reaching an agreeable resolution.
The Protecting Condominium Owners Act, 2015, when it comes into force, will add several new substantive provisions dealing with dispute resolution, including a provision allowing mediation to be by-passed in favour of arbitration. Further, when the Condominium Authority Tribunal is put into place, neither mediation or arbitration may be done if the matter is one that is designated as within the jurisdiction of that tribunal. This article will be updated by the time the new legislation and related regulations are in force.
What you need to know…
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…as a Unit Owner
Early settlement of disputes between unit owners and condominium corporation is generally to be preferred. Often in such disputes an unnatural and unnecessary "us-them" mentality emerges, which is contrary to the fundamental ideas of both condominium and mediation and will generally not help the parties to reach a reasonable resolution. If the parties insist on being so "positional" that genuine, open and honest dialogue cannot ensue, mediation is likely to fail. As in all cases of legal dispute, unit owners are advised to seek legal counsel. Often owners are unwilling to do so because of the risk of costs; however, generally, if the issue is genuinely one that is worth fighting over, it is worth getting help to do it right. Individuals are typically at greater risk of both financial and emotional loss in disputes with corporations, and this risk can be amplified in condominiums which are owners' homes. Often, the financial and emotional risks can be reduced if owners seek the assistance of legal counsel at an early stage. Having said this, this does not mean it is necessary to have legal counsel to participate in a mediation process, nor would the lawyer have to attend the mediation - the owner could simply retain the lawyer for advice. On the chance that arbitration or court proceedings become necessary (if the mediation fails), unit owners should be diligent in retaining and preparing credible and reliable evidence supporting their experience and views of the circumstances at issue. An ability to clarify and provide evidence that explains one's position well can also be of some benefit in reaching a resolution through mediation, even though there is generally no formal evidentiary disclosure requirement in this process. If the condominium corporation has a by-law setting out mediation procedures, these should be reviewed and followed. |
…as a Board Member
Condominium boards should almost never (if ever) rush toward formal legal proceedings involving a unit owner if there exists a reasonable chance of alternative settlement. In this regard, boards and unit owners are in much the same situation: early settlement, even prior to mediation, is to be preferred; however, on the chance that mediation, arbitration or court proceedings become necessary, the board should be diligent in retaining and preparing credible and reliable evidence supporting their experience and views of the circumstances at issue. Boards are also well advised to engage legal counsel at the very earliest stages of the dispute. Boards would be wise to consider enacting a mediation procedure by-law (and if made, to comply with it). |
…as a Declarant
As noted above, certain disputes that a condominium corporation may have with its declarant are subject to the mandatory mediation and arbitration provisions of the Act. Declarants who do not seek sincerely and reasonably to resolve disputes without necessitating formal legal proceedings are likely thereby to do more harm than good to their reputations in the market. |