Community associations must resolve conflict through a constructive, people-centered strategy. To reach that goal, many communities turn to alternative dispute resolution and consensus building to foster greater understanding and improve communication.
These alternatives to the traditional justice system have been embraced by attorneys, judges, and an increasing number of community associations not only because they are far less costly, but because they promote harmony rather than discord among neighbors.
In Conflict Resolution, you'll learn techniques for avoiding disputes as well as managing them when they come up. The book covers the key ADR techniques such as negotiation, mediation, and arbitration and how to build consensus among divergent groups. A large Appendix provides samples of many useful letters, documents, and agreements.
Content
Acknowledgments
Introduction
Chapter 1 – Managing Conflict
The Avoidance Approach
The Alternative Dispute Resolution Approach
A New Philosophy of Conflict
Chapter 2 – Negotiating Conflict
Positional Bargaining
Interest Based Bargaining
Negotiating Successfully
Who Should Use Internet Based Bargaining?
Chapter 3 – Mediating Conflict
When to Mediate
What is Appropriate for Mediation?
What Does the Mediator Do?
Can Mediation be Conducted Without Attorneys?
Steps in the Mediation Process
Chapter 4 – Arbitrating Conflict
What is Arbitration?
The Role of the Arbitrator
Administering the Arbitration Process
Including ADR Provisions in Legal Documents
Chapter 5 – Collaborative Decision Making
Building an Adequate Support Base
The Community-Involvement Process
Public-Involvement Techniques
Appendices: Sample Documents
Appendix 1 – Sample Clause for Negotiation Prior to Mediation or Arbitration
Appendix 2 – Sample Pre-dispute Arbitration Clause
Appendix 3 – Sample Letter to Client Explaining Mediation
Appendix 4 – Sample Agreement for Mediate
Appendix 5 – Sample Mediation Agreement Regarding Dispute Between Board Members
Appendix 6 – Sample Mediation Agreement Regarding Dispute Between Owners
Appendix 7 – Sample Arbitration Clause Providing for Procedures to be Determined Post Dispute
Appendix 8 – Sample Post-Dispute Arbitration Clause With Procedures
Excerpt
Wary purchasers, who often judge the actions of association boards and managers on negative media stories, may view association communities as overly-regulated fiefdoms of "condo commandos." And if they do, it is unlikely that they will purchase a home in a community association. This leaves the association with a complex problem. It must attract buyers, while enforcing rules and regulations that are not based on conformity, control, and constraint. It must balance both collective and individual rights.
To achieve this goal, the association must manage through constructive, people-centered strategy. Popular approaches to managing conflict that foster greater understanding and communication include alternative dispute resolution (ADR) and consensus-building.
ADR, which includes negotiation, mediation, and arbitration, provides associations with an alternative to the traditional justice system and has been embraced by attorneys who are disillusioned with the judicial system. According to Steven L. Schwartz, Esq. in his article, "Business and Legal Communities Look to ADR" published in the April-September 1996 issue of the Dispute Resolution Journal, lawyers are highly skilled in adversarial dispute resolution. And though they attempt to practice "professional civility" in court, the judicial system makes friendly relationships difficult.
Judges often are frustrated with the system as well. They cope with heavy caseloads and continuous adversaries. Many judges feel they have become administrators who are more concerned with moving congested court dockets than dispensing justice. Clients also believe the system is hostile, slow, and expensive. This uncertainty makes the victor indistinguishable from the vanquished.
This guide presents ADR methods in the order in which they are recommended for use. The early use of negotiation facilitates greater independence on the part of the association and requires the least amount of time and resources because it does not require the assistance of an outside party, such as a professional mediator or an attorney. Mediation is the next step due to its collaborative nature and minor investment of time and money. Arbitration is the least preferred ADR alternative, although it has its place in resolving complex legal issues.
ADR is an alternative to the traditional justice system. It includes negotiation, mediation, and arbitration.
In negotiation, participants identify the issues in dispute, educate each other about their needs and interests, generate settlement options, and bargain over final agreement terms.
In mediation, a neutral party—the mediator—resolves conflict between two or more parties.
In arbitration, a neutral party—the arbitrator—renders a final, legal decision based on evidence and testimony.
The association can use meetings, forums, open houses, and workshops to build support for its decisions within the community. This method is called consensus building.
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