Your Way Our Way Third Way Mediation – The Right Way

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

2. What We Will Cover

3. Dispute Resolution – What is It About?

4. Overview of California Civil Code Dispute Resolution IDR v ADR

5. 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 

6. 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.

7. 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

8. IDR -Results

9. ADR – Alternative Dispute Resolution

10. 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.

11. ADR – Alternative Dispute Resolution

12. Dispute Resolution • IDR • ADR

13. Terminology

14. Differences in ADR “Alternative dispute resolution” Civil Code 5925 • Mediation • Arbitration • Conciliation • Nonjudicial Procedure that involves a Neutral Party

15. ALTERNATIVE DISPUTE RESOLUTION MEDIATION 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 • More informal than arbitration • Focused on reaching resolution between the parties • Parties control the outcome • Caucus sessions • Written agreement is enforceable

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

17. 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

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

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

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

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

22. WHAT TO EXPECT AT MEDIATION WHAT TO EXPECT AT MEDIATION

23. Mediation Do’s and Don’ts DO DON’T Lose your temper Be uncompromising Disparage the other party Lose perspective Forget this is your chance to control the outcome • 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

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

25. MEDIATOR – What is Role?

26. Association or Owner – What is Role

27. Attorney – What is Role

28. Who Do you Bring?

29. Helpful Participants – Team Members

30. UNHELPFULParticipants – Cheer Leaders

31. 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!

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

33. 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?

34. Where Mediation Falls Apart

35. Mediation Do’s and Don’ts DO DON’T Lose your temper Be uncompromising Disparage the other party Lose perspective Forget this is your chance to control the outcome • 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

36. ?QUESTIONS?

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