Your Way Our Way Third Way Mediation The

Your Way Our Way Third Way Mediation – The Right Way Tim Flanagan, Berding & Weil Matthew A. Gardner, Richardson | Ober PC Barry Ross, Ross Mediation Services Dan Zimberoff, Homeowner Law

What We Will Cover Intro to Dispute Resolution • • • Civil Code Basics – IDR v ADR Terminology What types of Disputes? What to Expect at Mediation • • Parties Involved Mediation Brief What to Bring? Mediation Strategy Questions

Dispute Resolution – What is It About?

Overview of California Civil Code Dispute Resolution IDR v ADR

IDR – Internal Dispute Resolution • Civil Code 5900 – When it is Used? Whenever Possible • Applies to a dispute between an association and a member involving their rights, duties, or liabilities under Civil Code, under the Nonprofit Mutual Benefit Corporation Law, or under the governing documents • Civil Code 5905 – Is it Needed? Yes, Develop a Policy. • An association SHALL provide a fair, reasonable, and expeditious procedure for resolving a dispute within the scope of this article. • Civil Code 5910 – Minimum Requirements? • A fair, reasonable, and expeditious dispute resolution procedure

What is Fair? -Civil Code 5910 a) The procedure may be invoked by either party to the dispute. A request invoking the procedure shall be in writing. (b) The procedure shall provide for prompt deadlines. The procedure shall state the maximum time for the association to act on a request invoking the procedure. (c) If the procedure is invoked by a member, the association shall participate in the procedure. (d) If the procedure is invoked by the association, the member may elect not to participate in the procedure. If the member participates but the dispute is resolved other than by agreement of the member, the member shall have a right of appeal to the board. (e) A written resolution…(or) A written agreement, signed by both parties… is judicially enforceable. (f) The procedure shall provide a means by which the member and the association may explain their positions. The member and association may be assisted by an attorney or another person in explaining their positions at their own cost. (g) A member of the association shall not be charged a fee to participate in the process.

IDR – Internal Dispute Resolution • Civil Code 5915 – What if No Policy? Use Code • Remember - A member shall not be charged a fee to participate in the process. • Civil Code 5920 – Do I give Notice? Yes. • The annual policy statement prepared pursuant to Section 5310 shall include a description of the internal dispute resolution process. • Civil Code 5900 – Am I done with Resolution? NO… • This article supplements, and does not replace…Section 5925 relating to alternative dispute resolution as a prerequisite to an enforcement action

IDR -Results

ADR – Alternative Dispute Resolution Civil Code 5925 – What is It? Neutral Party Civil Code 5930 – When Required? Before Litigation Civil Code 5935 – Who Initiates? Either Party Means mediation, arbitration, conciliation, or other nonjudicial procedure that involves a neutral party in the decision making process. No Litigation unless the parties submit their dispute to alternative dispute resolution. Declaratory, Injunctive, or Writ Relief Small Claims =/= Litigation. A fair, reasonable, and expeditious dispute resolution procedure

What is Proper Request? – Civil Code 5935 (a) Any party to a dispute may initiate the process required by Section 5930 by serving on all other parties to the dispute a Request for Resolution. The Request for Resolution shall include all of the following: (1) A brief description of the dispute between the parties. (2) A request for alternative dispute resolution. (3) A notice that the party receiving the Request for Resolution is required to respond within 30 days of receipt or the request will be deemed rejected. (4) If the party on whom the request is served is the member, a copy of this article. (b) Service of the Request for Resolution shall be by personal delivery, first-class mail, express mail, facsimile transmission, or other means reasonably calculated to provide the party on whom the request is served actual notice of the request. (c) A party on whom a Request for Resolution is served has 30 days following service to accept or reject the request. If a party does not accept the request within that period, the request is deemed rejected by the party.

ADR – Alternative Dispute Resolution Civil Code 5940 – How Long Does it Take? Stay on Track… Civil Code 5945 – What Happens? Litigation on Hold Civil Code 5965 –Do I give Notice? Yes, Annually the parties shall complete the ADR within 90 days after receiving acceptance, unless extended in writing signed by both parties. No Litigation while ADR progresses. The summary shall be included in the annual policy statement prepared pursuant to Section 5310. Request for Resolution served before the end of the time limitation for commencing litigation tolls future deadlines

Dispute Resolution • IDR • ADR

Terminology

Differences in ADR “Alternative dispute resolution” Civil Code 5925 1. Mediation 2. Arbitration 3. Conciliation 4. Nonjudicial Procedure that involves a Neutral Party

ALTERNATIVE DISPUTE RESOLUTION MEDIATION • More informal than arbitration • Focused on reaching resolution between the parties • Parties control the outcome • Caucus sessions • Written agreement is enforceable ARBITRATION • Can be binding or non-binding • More formal – mini trial • Individual arbitrator or panel • Evidence is introduced • Arbitrator(s) decide • If binding, decision is final

? Conciliation or Non-Judicial Procedure? Think Outside the Box • “Inside” Neutral • Fellow Homeowner • Mutually Trusted Person • Solutions

What To Consider Before Selecting ADR Civil Code 5930 Litigation Requires Advance ADR • Enforcement Actions • Declaratory – What do CC&Rs say/mean? • Injunctive – Prevent Harm • Writ Relief – Undo Harm • Assessment Disputes

COMMON CONFLICTS • Nuisance (noise, smoking, etc. ) • Maintenance • Architectural • Violations of the Governing Documents (parking, pets, etc. )

UNRESOLVED CONFLICTS LEAD TO. . . • Time and Stress • Loss of Community Cohesiveness • Legal Fees • Diminished Property Values • Distraction from Important Association Business

Enforcement • Are the CC&Rs Clear ? • Will Decision Affect Other Owners? • Architecture • Maintenance • Ownership • Will a delay Increase Harm? • Are Parties Open to Resolution?

Assessments • Is there a discrepancy? • Does Board have Director Willing/Able to Resolve? • Pending Legislation – COMING SOON • Are Parties Open to Resolution

WHAT TO EXPECT AT MEDIATION

Mediation Do’s and Don’ts DO DON’T • Set realistic goals • Listen/speak with respect • Be open-minded • Focus on the instant issue (not past grievances) • Remember you all have to live in the same community afterwards • Lose your temper • Be uncompromising • Disparage the other party • Lose perspective • Forget this is your chance to control the outcome

Parties involved in Resolution • Mediator • Association/Owner • Attorney

MEDIATOR – What is Role? DISTILL AND UNDERSTAND DISPUTE – READ THE BRIEFS REVIEW DOCUMENTS AND RECORDS – WHAT ARE FACTS? LISTEN TO PARTICIPANTS – WHAT DO YOU NEED? TALK TO PARTICIPANTS – WHAT DOES OTHER PARTY NEED? COMMUNICATE NOT ADVOCATE DISCUSS WITH PARTICIPANTS – WHAT ARE STRENGTHS/WEA KNESSES ASSIST IN RESOLUTION – OUTLINE AND PROPOSE SOLUTIONS

Association or Owner – What is Role Tell Outline Be Ready Communicate Listen Assist Tell the Story – Outline your Position – Assist in Resolution – Why is it Important? Communicate Limitations to Mediator – What Can’t You Do? Listen to Participants- Give Complete Picture Be Ready to Discuss Resolution – Before you Arrive What Do They Need From You? Consider and Counter Solutions

Attorney – What is Role BE PREPARED – KNOW THE FACTS, READ AND REVIEW DOCUMENTS PREPARE YOUR CLIENT – TELL THEM WHAT TO EXPECT AND WHAT RESOLUTION MEANS LISTEN TO MEDIATOR – BE READY TO “TRANSLATE” FOR CLIENT ASSIST IN RESOLUTION – DISCUSS AND PROPOSE SOLUTIONS ADVOCATE FOR CLIENT – REPRESENT THEIR INTEREST

Who Do you Bring?

Helpful Participants – Team Members Board Representative • • Understands the Dispute Willing to Engage in Discussion and Make Decisions? Has the Support of the Board/Association? Perceived to be Fair to Other Party? Manager • Can Provide Background on the Dispute? • UNWILLING to Engage in Discussion and Make Decisions • Perceived to be Fair to Other Party?

UNHELPFUL Participants – Cheer Leaders Board Member Manager “Witnesses” • Personal Grudges Against Other Party • Unwilling to Engage in Good Faith Resolution • Perceived to be UNFAIR to Other Party • Decision Maker for Community • Neighbors with Personal Grudges • Vendors Dependent on Contract

Mediation Brief Summarize Your Position • Give Mediator your Perspective • Identify Authority for Position Demonstrate Good Faith • Indicate (Any) Areas of Agreement • Discuss Position on Resolution Mediator Musts • Decide on Whether to Make Information Private • Keep it Brief!

What to Bring • Documents? • Gov Docs • Authority • Records - Dispute? • Letters/Emails • Pictures • Witnesses?

Strategy • Know your Objective • Litigation • Resolution • Know Your Opponent • Business Partner • Owner/ Future Board Member • Know your Limits • What can You Give Up? • Agreement out of the Question?

Where Mediation Falls Apart

Mediation Do’s and Don’ts DO DON’T • Set realistic goals • Listen/speak with respect • Be open-minded • Focus on the instant issue (not past grievances) • Remember you all have to live in the same community afterwards • Lose your temper • Be uncompromising • Disparage the other party • Lose perspective • Forget this is your chance to control the outcome

? QUESTIONS?

Tim Flanagan Barry Ross, Esq. Berding & Weil www. rossmediation. com tflanagan@berdingweil. com barryross@rossmediation. com Matthew A. Gardner Daniel Zimberoff Richardson | Ober PC Homeowner Law matthew@richardsonober. com danzimberoff@homeowner-law. com