A
condo board with a multimillion-dollar lawsuit, three years of aggravation and ulcers
all around.
Everyone wants to feel heard, and,
particularly in conflict – when emotions are often inflamed – it’s
easy for understanding to be compromised and agreement to seem impossible.
Mediation can remedy that. For those in conflict and perhaps contemplating litigation,
mediation’s a highly
effective alternative to long, drawn-out lawsuits, saving time, money and
prolonged stress. It can also help mitigate
both business and reputational risk, and even relationships strained by a
dispute. With its broad applicability, the benefits of mediation have been long
embraced by the NYC and NYS bar associations, by law schools as well as our inundated
local, state and federal courts.
Co-ops and
condos certainly have their share of disputes; conflicts pertaining to leases
and deeds, noise and other warranty of habitability issues, property damage,
disputes with management or board members and assertions of discrimination are
but a sampling. In our notoriously litigious society, the road to the
courthouse is often the path of choice. But considering the tremendous legal
fees and protracted time it takes even simply to arrive at trial, is it
necessarily the best choice? Furthermore, in general, some ninety to ninety-five
percent of court cases are settled prior to the actual trial.
Consider the various, publicized lawsuits brought against the
co-op board of directors of the renowned Dakota, home to many a celebrity over
the years. Writing for The New York Times
February 1, 2011, journalists Peter Lattman and Christine Haugheny asserted
that whether or not any of the allegations against the Dakota’s board were
upheld in court, the accusations were “a
potentially embarrassing crack in the facade of one of the world’s most
celebrated buildings and fodder for those who feel they have been wronged by
that peculiar New York institution, the almighty co-op board.” Though there might
be plaintiffs and defendants alike who could have their reasons for wanting the
type of publicity generated by conflict, it’s fair to say most do not. Parties
to disputes such as the Dakota’s could not only have saved significant time,
money and stress by having gone to mediation, both sides also could have
avoided unnecessary publicity.
Mediation’s a voluntary,
confidential process, in which a trained,
impartial third-party – the mediator – helps facilitate a conversation between
parties in dispute who have been unable to negotiate a resolution on their own.
The beauty of mediation is that it empowers parties to explore creative options
for resolution and settle their dispute on their own terms rather than face the
uncertain outcome of a court’s decision. While court decisions are generally
defined in terms of win-lose, parties in mediation are afforded the opportunity
to negotiate a fair and mutually acceptable agreement. Mediation settlements
are written up by legal counsel and are binding. By seeking mediation, parties
are demonstrating a good faith effort to resolve their dispute; in fact, sitting
down at the mediation table is, in and of itself, a step in the right
direction. And because of the “ownership” the parties take in the mediation
process, the likelihood of their commitment is enhanced.
Guided by mediation’s fundamental
principles of neutrality and confidentiality, voluntariness and empowerment, the
mediator creates a safe space, generally with some ground rules, in which
parties are encouraged to speak openly. Meeting jointly with both parties, the mediator
utilizes various skills and techniques to help break through positional
barriers and guide the parties forward to resolution.
As most mediators agree, it’s never just about the money.
Whether the parties have their legal counsel present is up to them; however, it
is the parties themselves who “own” the mediation process, not the attorneys. Unlike
in arbitration, another form of alternative dispute resolution, the mediator
acts neither as judge nor decision-maker. A mediator also can help the parties
navigate factors such as power asymmetries and cultural differences. As parties
move closer to settlement, or perhaps in the event that both parties are found
to be obstinately embedded in their positions, a mediator might decide to pause the joint mediation and meet
separately with each party.
These
separate meetings are known as caucuses and everything said in these meetings is
also confidential, unless the mediator’s authorized to share what was
discussed. In caucus, mediators frequently act as agents of reality, helping the
parties assess risk and the strengths and weaknesses of their case. Because
mediation is voluntary, parties can terminate the process at any time. And
because mediation is governed by strict confidentiality, mediators cannot even be subpoenaed to testify should mediation
be terminated before settlement is reached and a case eventually end up in
court.
Some perhaps might find it incomprehensible
to imagine even sitting down at a mediation table with an adversary whose
diametrically opposed positions and inflexibility have previously prevented
them from resolving their dispute. Not only can mediation work, I have
experienced discernible moments when the energy in the room shifts, where tensions
and hostilities palpably begin to dissipate as parties move forward onto a path
to settling their differences.
Types of mediation other than the more traditional
“facilitative” style are the “evaluative,” whereby a mediator can express an
opinion and may even propose a basis for settlement; “transformative”
mediation, more focused on the relationship; and the “mandatory” initial
mediation as ordered by some courts.
Many people today are more familiar with mediation in terms of
divorce, unions and international conflict; however, the applicability of
mediation is far-reaching. Whether a dispute involves co-ops, condos,
neighbors, corporations, small businesses, partnerships, employees – the list goes on and on – all can avail
themselves of the significant and diverse cost-saving benefits of mediation. Conflict’s
a part of life; but, that doesn’t mean it needs to drain the life out of us.
Mallory J. Stevens is a divorce and commercial mediator
and conflict resolution consultant in private practice in NYC. She’s an
ex-international banker and also mediates in Spanish and Portuguese.
Article published in the July 2016 issue of The Cooperator, the Co-op & Condo Monthly)
http://cooperator.com/article/why-litigate-when-you-can-mediate
