Condominiums

Parking Your Problems

Peterson and Jackson were neighbours in the Glenngrove Townhouse Condominium. Jackson was constantly parking his work vehicle, a panel van, in the visitor’s parking. The Petersons frequently had their parents over to look after the kids when they were out of town on business. It annoyed them that they had to park far away on the other side of the complex, because Jackson’s vehicle was routinely taking up one of three visitor spots. They spoke to Jackson, but instead of helping the situation, it only made it worse, so that now they didn’t even greet each other when they passed.

The Petersons had complained to the Condominium Manager, but were always told that all that could be done was to have the local by-law authority come and ticket the vehicle for towing. The by-law people were always so late in coming that Jackson’s vehicle had been moved and nothing changed.

Last month, the Petersons left a note on Jackson’s van asking him to meet with them about the visitor’s parking spots and leaving a phone number. Within 10 days a meeting had been organized, at the Condominium offices. The meeting was arranged and run by a mediator hired by both Jackson and Peterson.

With the help of the mediator, the parties talked over the options and agreed that having the van towed would only make the situation worse. It was agreed that on weekday evenings when Parkers’ parents were likely to be around, Jackson would park his van across the complex where the parents’ car had been parked. Parkers agreed to make their driveway available to Jackson for his van when the whole family was going to be out of town.

The session took two and a half (2 ½) hours from start to finish.

Running Interference

It looked like a giant upturned umbrella and it stood out like a sore thumb. Opinion about the satellite dish that Johnny Quest had mounted on the roof of his garage was polarized. Some, like Mel Swartz who enjoyed NFL football thought it was great and everyone should be permitted to erect one. Others like the Matilda sisters thought it was shocking and brought down the whole tone of the place.

The by-laws of the Corporation clearly restricted mounting "external antennas, receivers and broadcast masts" that were "clearly visible from the street". There was little doubt that Quest’s Dish breached the spirit, if not the letter of the by-law. While the Board debated what to do - (the Corporation had a legal opinion that it may be liable if any damage occurred to the dish while removing it) - news came that the "pro-Quest" camp was organizing a campaign to get the by-law changed at the next annual meeting. The Board could not see a consensus emerging at the meeting and were concerned about the viability of the Corporation if a practical solution was not found.

The Board suggested that a mediator be engaged by the Corporation to work with Quest, the Matildas as well as Mel Swartz and other interested members to find a solution. A series of meetings were held and it was ultimately decided that the Corporation would purchase "Quest’s Dish" and Quest would pay to have it moved to a central spot, on the roof behind the Corporation’s offices, where it could be used in a central room. The by-law was to be amended to permit each unit owner to purchase and mount their own small satellite dishes either inside or outside the unit, so long as the dish was obscured from view from the street.

The series of meetings took six weeks from beginning to end and cost the Corporation $3,500.00 - about what it had been told to expect to pay to deal with the Quest situation alone. It left one group dissatisfied with the costs involved but pleased that the appearance of the complex had been preserved.

Both of these outcomes had been arrived at after a lot of careful listening, exploration and hard work on the part of the people involved. The mediators had been instrumental in making space for these admittedly difficult discussions to happen, but the solutions ultimately arrived at were the creations of those people with the greatest stake in the outcome.

The New Act

Disputes arising in the condominium context can occur among various parties, and many of them can be appropriately dealt with through mediation. Under the new Condominium Act, mediation will be a mandatory first step in settling many of these disputes.

The long-awaited Bill 38 received final reading and Royal Assent in December of 1998 and is awaiting completion of the regulations to support it, prior to being proclaimed into force. The new Act replaces the first condominium legislation in Ontario, which was enacted in 1967, and amended in 1978. With 188 sections and an anticipated large number of regulations it will affect virtually every aspect of condominium law and administration.

Among the very significant changes that will impact on developers, condominium corporations, unit owners and managers is the requirement for mandatory mediation in many specified disputes. If mediation fails to resolve a problem, mandatory arbitration will then be required prior to traditional litigation.

Mediation is Mandatory

The new Act provides that the following agreements shall be deemed to include a provision to submit a dispute between the parties to the agreement to mediation, s. 132 (2).

(i) agreements between a declarant and a corporation;
(ii) agreements between two or more corporations;
(iii) agreements between a corporation and an owner regarding an addition, alteration or improvement to the common elements; and
(iv) Management agreements between the corporation and the property manager.

Any disagreement between the corporation and the declarant arising out of the declarant’s budget, contained in the disclosure statement or the declarant’s other obligations in respect to s. 76 (first year budget deficit) must also go to mediation or arbitration.

Every declaration shall be deemed to contain a provision that the corporation and owner agree to submit any disagreement between them with respect to the declaration, bylaws or rules to mediation and arbitration.

The Process according to the Act

Under s. 132 (1), if a dispute arises with regard to the above agreements, the matter must first be submitted to:

(i) mediation by a person selected by the parties, unless the same issues have already been dealt with by mediation;
(ii) if the mediation fails to reach a settlement, an arbitrator appointed under The Arbitration Act of Ontario:

(a) 60 days after the parties have submitted the disagreement to mediation, if the parties have not selected a mediator; or
(b) 30 days after the mediator that was selected delivers a notice to the parties that the mediation failed.

In all of the disputes set out above, the parties are deemed, by law, to have agreed to submit the matter to a mediator to be selected by them. Should they not be able to agree on a particular mediator, it would appear that the parties are able to circumvent the mandatory mediation step. While the Act itself does not provide much detail as to how the mediation should proceed, the regulations may address the issues of who to call, when to schedule a session or which documents to share. Should the regulations not provide a model mediation procedure, condominium corporations are able to pass by-laws regarding mediation procedures.

What is the Cost of Mediation?

With regard to cost of the mediation, The Act specifies that should the mediation result in a settlement, then the parties can decide how to share the fees and expenses of the mediator. If there is no settlement, then the mediator determines who pays the cost of the mediation, s. 132 (6). Mediators usually charge fees on an hourly or per diem basis for the mediation session itself and one hour of preparation per party. Expenses can include mileage, telephone charges and facility rental costs.

Why would I want to Mediate?

Disputes arise in all areas of life and the Condominium Corporation or owner will be familiar with those that occur in the condominium context. The costs of unmanaged or unresolved disputes include time, money, damaged relationships, recurrence, stress, and dissatisfaction. There are three basic ways that we resolve conflict - by reconciling the parties’ interests, by determining who is right, or by determining who has more power. A key concept is that interest-based resolutions are less costly and more satisfying than rights-based resolutions, and in turn rights-based resolutions are less costly and more satisfying than power-based resolutions.

Mediation is a process designed to resolve disputes by mutual agreement through direct negotiations assisted by an impartial third party. Unlike binding arbitration, which is a rights-based approach, the mediator does not make a decision, but rather assists the parties in reaching their own negotiated settlement. The mediator creates an environment where both parties state their perspective on the dispute and tell one another how the conflict affects them. Mediators facilitate the conversation, helping the parties to think and speak about their conflict in constructive ways. The parties are encouraged to generate mutually agreeable solutions to their situation.

Mandatory mediation does not mean mandatory settlement. The agreement, if reached, is voluntary, not imposed. Settlements within mediation take into account all of the parties’ interests: personal, procedural, as well as legal. Even if no agreement is reached, an opportunity has been provided for people to have a new understanding of the events and perhaps for the issues to be narrowed.

What are the Benefits of Mediation?

• informal process, intended to be non-adversarial and can be flexible
• efficient: opportunity to resolve issues quickly, usually can arrange a mediation session in less time than going to court and most mediation sessions conclude in a day or less.
• more cost-effective than litigation, which can be extremely expensive
• sessions held in private and the results are confidential
• opportunity to maintain relationship: important in the condominium community where owners live close together and where, in disputes involving trades and professionals, there is an interest in preserving a business relationship
• compliance: greater likelihood of parties adhering to the terms of the agreement reached because they have been part of the settlement, rather than having it imposed on them by an arbitrator or court
• often lower settlement costs

Does Mediation Work?

The rate at which cases settle in mediation varies depending on what situation gives rise to the mediation. In a 1994 publication, the CPR Institute for Dispute Resolution gave a rough settlement rate of 81% for voluntary private mediations and 64.7% for court-related mediation. A November 1999 status report for the Ontario Mandatory Mediation Program indicates that 58.5% of the cases settled or partially settled. In that program, parties involved in a civil (non-family) case managed action must use mediation within 90 days of the filing of the first defense.

How do I find a Mediator?

At this time, the mediation field is essentially an unregulated one. There is no governing body, pending legislation to regulate, or license to practice. Voluntary organizations have developed criteria for admission, codes of conduct and rosters of practitioners, as has the Ontario Mandatory Mediation Program. Private mediators enter the field from a variety of professions and vary in terms of background, experience and style of mediating.

Each mediator should have highly developed communications skills, a good understanding of how the mediation process works and be conversant in the terminology and common issues in the subject area in dispute so that they are not "at sea". You can find a mediator by consulting your local condominium association, asking for references, speaking to mediators’ organizations (such as the Arbitration and Mediation Institute Phone 416-487-4447), who maintain a roster, and inquiring of professionals with personal experience engaging the services of mediators.

Ask about an individual’s qualifications, experience, fees, style and approach to mediation prior to engaging them.

If you want to bring a matter forward for mediation, simply complete the online application form, or call Agree and provide the particulars by phone.