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Resolving Differences

Alternative Dispute Resolution (ADR) is a popular method that allows people to solve disputes in a cooperative manner rather than through litigation. Because the parties settle out of court, time frames and expenses are often substantially reduced. ADR is becoming very popular among community associations for some critical reasons: Community disputes involve neighbors and the win-lose result of many court verdicts perpetuates unhealthy feuds between those neighbors. Secondly, disputes often are matters of principle like architectural design or rules instead of money.

ADR gives the parties a sense of involvement in the process, making compliance with the result more likely than with an imposed court verdict. Parties using ADR sometimes stipulate beforehand that any agreement reached will be enforceable as a contract. If the is no such agreement, the parties are free to use other methods to solve their dispute. Regardless, ADR may help better define the dispute and understand how a judge or jury might react to the case.

ADR is considered private and confidential. All communications and documents are confidential and cannot be used in a court of law unless the documents are independently disco-verable. Even a party's demeanor in the proceedings may not be disclosed.

ADR may be voluntary, mandatory, binding, or advisory and may involve either mediation, conciliation or arbitration.

Mediation is an informal method of ADR that involves a trained mediator helping disputing parties negotiate a settlement of their conflict. Each side meets privately with the mediator, as well as in joint sessions with the mediator and the other side. Mediation is non-binding because the mediator does not have the power to impose a resolution on the parties. Rather, the role of the mediator is to help the parties reach their own resolution. While courts are limited by law to specific remedies, mediation is limited only by the nature of the problem and the parties' own creativity. The parties come to a solution themselves, and therefore are invested in an enduring resolution.

Conciliation is an informal process in which an acceptable neutral third party is asked to investigate a dispute, usually one involving complex or technical issues. A third party meets with the parties at separate times, analyzes the disputed facts, and issues findings in a report or recommendation. This process may be especially useful in handling sensitive disputes where strong emotions interfere with the ability to conduct a fair and impartial investigation of an allegation. To avoid the appearance of unfairness, an association may turn to the outside neutral third party in hopes of reaching a settlement.

Arbitration allows both parties to present their cases to a neutral third party. The role of an arbitrator is different from that of a mediator, because the arbitrator makes a decision. The parties stipulate in advance whether the decision of the arbitrator will be binding or non-binding. If binding, the decision is enforceable in court in the same manner as any other contractual obligation. Arbitration is best used in cases involving factual conflicts that can be resolved by experts on a particular subject.

Finding an ADR Provider ADR providers vary widely in specialization, expertise, ability, and quality. Potential providers should be questioned about their training about the issues in dispute. Costs vary depending on the type of dispute and the expertise of the ADR provider. Some providers charge an hourly rate, while others charge a flat fee. Information is available from the following organizations:

American Arbitration Association
140 51st Street West
New York, NY 10020

National Institute for Dispute Resolution
1901 L Street NW. #600
Washington, DC 20036

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