mediation and dispute resolution for condominiums€¦ · deborah m. howes b.a., ll.b., acci, fcci,...

ByDeborah M. Howes

BA, LLB, ACCI, FCC, C.Arb., C.Med.

MEDIATION AND DISPUTE RESOLUTION FOR CONDOMINIUMS

Business

Community

Property

18/06/05 HCI ‐ Harmony In a Condominium Community 3

Good Community, Good Property, Good Business = Good Condominium

• Dispute Resolution – SK CPA ‐ sections 98 ‐ 102– Action in debt for repairs

– Small claims court for bylaw sanction

– Arbitration

– Administrator

– Scheme of settlement

• section 98 – Action in debt – Corporation – from owner

• for – Repairs to unit

– Work done by municipal or public order

Section 99 – Sanctions Corporation action• From owner, tenant or other person who resides in or on a unit

• For bylaw breach• To Court under Small Claims Act, 1997

• For penalty of not more than $500 DUNN V. CONDOMINIUM PLAN NO.

89PA14638 (OWNERS) QB03127

• Section 100 ‐ Arbitration– Between corporation and owners– Between owners

• Single arbitrator• Parties equally share cost• Can register caveat against title

• Section 101 ‐ Administrator– Court appointed– Replaces board– All owners pay– Short or long term

• Section 102 – Settlement Scheme– Between corporation and owners

• Damage to building• Court blesses

‐ Rebuild‐ Transfer‐ $

Enforcing bylaws using the courts • Lawsuit• legal advice• settlement options• mediation or arbitration• Limitations Act ‐ 2 years • Time and cost• Winner recover part or all of its legal costs

Statement of claim

Statement of defence

Affidavit of documents

Examinations for discovery

Certificate of Trial Readiness JDR/Mediation

Trial Judgment Enforcement

ARBITRATION/MEDIATION

• Arbitration – private judge– Result is binding order– enforceable

• Mediation – private facilitator– Result can be agreed contract/settlement

• Arbitration– Private judge– Binding decision– Input to process– Private hearing

6/30/2016 High Clouds Incorporated ‐ Arbitration for UofA Law 15

What can Arbitrators Do?• Interpret and apply the Act• Interpret and apply contracts• Determine facts • Direct procedure• Order costs• Order preservation of property and documents• Make interim and final awards• Award $, orders to do or stop doing


Starting Either Process

Process to start arbitration or mediation• Identify bylaws and Act provisions• Discuss with other side the preferred process• Research arbitrators or mediators• Discuss with other side the preferred person• Contact agreed person and they take over the process

• See for more information

• Mediation– Negotiation – With outside help– Voluntary– Goal – settlement– Preserve relationships



Choosing an Arbitrator or Mediator• Qualifications: education and experience• Content knowledge and experience• Cost• Availability• Conflicts of interest• Agreement of the other party• Rosters


Get Organized ‐ Get a Plan

• Strategic Planning works

• Renew it periodically


Be Predictable ‐ Follow the Rules

• when you have bylaws, follow them

• don’t allow predictability to overrule discretion and case by case review

• if you live by the sword ......


If it’s Broke ‐ Fix it!

• Bylaws

– eliminate the unreasonable rules– get with the times– reflect the community– include ADR clauses–when you have them,

follow them


Share what you should and when you can

• clarity of expectations

• Annual Reports • disclosure

(information is knowledge ‐ he or she who holds it holds the power)


Educate Someone

• board, owners, tenants, structured and unstructured – what, when, how often, who does it?


Use Creative and Inclusive Approaches

• open houses• community meetings• forums• working meetings• nominal group workshops• Owner Advisory Groups ‐ owner buy‐in and activity

•


Use Creative and Inclusive Approaches

• owner directed projects• annual and special meetings• coffee parties• owner appeal mechanisms• the golden rule ‐ what got you involved?


An Ounce of Prevention

• is it better to react or to anticipate?• new neighbours, existing owners

– getting to know each other [“the old fashioned way”]

– sharing the successes [“good new looney”]


Addressing Disputes quickly

• informal contact, • overreactions, • consistent, • flexible, • due process, • timely response, • ACT – Don’t Let it Fester


Is there a place for:

• a grievance committee?• a dispute resolution process?• fines?• making exceptions?• making special arrangements?• owner appeal mechanisms?• non‐directors to carry the message (eg. Mangers or other agencies)?

•


The Act allows them ‐ do you use them?

• Mediation–How it works ‐ description / video–Why it works ‐–When it works ‐ examples

• Arbitration– how and why it’s an alternative to court action


Mediation

• A process where an impartial 3rd party helps the disputing parties to negotiate their own resolution or settlement by facilitating the negotiating process for the parties.

• Done by agreement or by contract.


Arbitration

• A process where an impartial, knowledgeable 3rd person listens to the parties in the dispute and makes a final and binding decision for them.

• Done by agreement, by contract or under the Alberta Arbitration Act.


Why Choose Mediation or Arbitration?

Both• are relatively informal.• allow the parties to

“control” the process.• enhance satisfaction for

the parties.• allow for experts, advisors

and counsel.

• Mediation preserves or enhances relationships.

• Arbitration ends the dispute by getting a decision.



• Decide which process to use.• If a formal process exists, access it (eg. ANHW, Better Business Bureau, contract, legislation)

• Investigate possible arbitrators or mediators.

• Contact the other party and suggest / require mediation or arbitration.



• Agree on the process to use.• Agree on the mediator or arbitrator to use.• If you can’t agree on a name, attempt to agree on who can appoint (court, AAMS, etc.)

• Contact the mediator or arbitrator to confirm they will act.

• Follow the lead of the mediator or arbitrator.


What is the Result?


What You Get at the End of the Day

• Mediation– a settlement (possibly)– something to develop into a formal agreement

– a better understanding– a relationship– a model for next time

• Arbitration– a binding decision that can be enforced in the courts

– finality

6/30/2016 High Clouds Inc. 2006 Dealing with Difficult People 38

What is a Difficult Person?• Own view of the outcome or process• Strong convictions• Value or principle based• Own information• No or limited information• Strong emotion• Taking it personally• Working to a deadline• Has limited resources• Mental incapacity• Uses force or threats


Tips and Tools

• Tip #1 –

Stock up the tool kit – if we only have a hammer, we look at every “problem” as a nail


Tips and Tools

• Tip #2 –

Be prepared to go beyond the easy …


Tips and Tools

• Tip #3 –

Identify the source of the difficulty …

Then try to resolve or remove the difficulty


Why are we difficult?• Own view of the outcome or process• Strong convictions• Value or principle based• Own information• No or limited information• Strong emotion• Take it personally• Work to a deadline• Have limited resources• Mental incapacity


Tips and Tools

• Tip #4 –

Treat the people like people …


Tips and Tools

• Tip #5 –

Don’t make either of you victims …


Tips and Tools

• Tip #6 –

Acknowledge what you cannot deal with …‐ mental incapacity‐ the other person’s resources‐ illegal activity‐ threats to safety and security‐ rules or processes beyond your control

Identify you will have to involve others…


Tips and Tools

• Tip #7 –

Look in the mirror …

Are you the source of the difficulty?


Tips and Tools

• Tip #8 –

Look for preventative steps for the future …


Tips and Tools

• Tip #9 –

Take a course in …‐ interpersonal conflict skills‐ mediation / facilitation

Deborah M. Howes B.A., LL.B., ACCI, FCCI, C. Arb., C. Med. is a Chartered Arbitrator and Chartered Mediator with the ADR Institute of Canada. She is the President of High Clouds Incorporated, an Alberta based company providing seminars and dispute resolution services. Ms. Howes holds Certificates in Arbitration and Conflict Management from the Alberta Arbitration and Mediation Society, and Bachelor of Laws and Bachelor of Arts degrees.

Deborah is an active facilitator, arbitrator, mediator, and trainer. She has over 25 years experience in all aspects of disputeresolution, labour relations and condominium. She speaks on dispute resolution and condominium matters at provincial, national and international conferences. In previous roles, Ms. Howes was a Vice Chair with the Alberta Labour Relations Board, and practiced law with the Edmonton firm of Duncan & Craig. In 2007 she was appointed to the Public Service Labour Relations Board.

Ms. Howes is a past President of the Canadian Condominium Institute (National) and of the CCI North Alberta Chapter. She hasbeen a condominium owner and director and practiced law in condominium before being appointed to the ALRB. She has been an Associate of the Canadian Condominium Institute since 1991 and a Fellow of CCI since 1999. Since 2000, Deborah Howes has been a member of the Minister’s Advisory Committee on the Condominium Property Act. She is the co‐author and editor of Condominium Management 100 ‐ 300. Ms. Howes was an advisor for Alberta Human Resources and Employment on the “Let’s Talk” publication – a workplace guide to resolving disputes using an interest based model.

Deborah Howes is a member of the Law Society of Alberta; Canadian Industrial Relations Associations (North and South Alberta), Alberta Arbitration & Mediation Society; ADR Institute of Canada Inc.; Conflict Resolution Network, Council of Canadian Administrative Tribunals; Foundation of Administrative Justice and Canadian Condominium Institute.

High Clouds Incorporated 34 St. Business Centre, 3438 ‐ 78 Avenue Edmonton AB T6B 2X9 Phone: 780‐466‐8250 Fax: 780‐466‐8015 Email: [email protected] Website: www.highclouds.ca

mediation and dispute resolution for condominiums€¦ · deborah m. howes b.a., ll.b., acci, fcci,...

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