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CONDOCENTRIC: Avoiding The Dispute

When the new Condominium Act (the "Act") came into effect, it imposed upon the condominium community an obligation to mediate, and if necessary arbitrate, in those situations where there is a disagreement with regard to a declaration, by-law or rule. The imposition of mandatory mediation has been resisted to a degree, not because of any desire to avoid the "win-win" results which characterize many mediated resolutions, but rather because a traditional, and very efficient, legal process (Section 49 Summary Application under the old Act) was being partially "taken away" and replaced with a process that is seen, at first glance, to result in the lengthening of the dispute resolution process.

The question that should be asked is: whether or not a condominium corporation can do something more (or better) at the early stages of the conflict to reduce the magnitude of the dispute? Reflection on some of the more general causes which can give rise to or intensify a conflict may assist Boards and Managers in dissipating conflict. The following list addresses five basic factors contributing to or creating conflict. Identifying and reflecting on these factors specifically within a particular condominium community may also assist in the more efficient and cost-effective resolution of conflict before a dispute evolves:

1. Communication: Effective communication takes time and effort, but it may be worthwhile if you consider for a moment how often communication (or rather a lack of it) is raised as a primary complaint at unit owner meetings. Many factors impact effective communication with your audience; some of these factors include: culture, gender, age, class and environment. When communication is not effective, it often results in unit owners drawing inaccurate conclusions, which may fuel conflict.

2. Emotions: Emotion can often be a driving force in conflict. It is not unusual for parties to become very emotional if they feel an inability to communicate with the Board or management, or if they feel they are simply not being listened to. Conversely, a Board and management can become equally frustrated with a unit owner, who, for whatever reason, refuses or is unable to consider what the condominium corporation believes is best. In order to move forward to resolution, and insofar as possible, emotions should be kept in check to avoid escalating the dispute. In addition, “nipping the problem in the bud" with proactive solutions will diffuse negative emotions.

3. Values: Values include a person’s belief of what is right versus wrong. While it is unlikely that you will have any success in changing a person’s values, it is a positive step towards resolution to recognize and acknowledge that different values exist, particularly in our multicultural environment. As well, if you look carefully, there most often will be common values that the parties share but interpret differently.

4. Structure: Structure includes, for example, the unilateral decision-making power of a Board of Directors to set the budget or to come up with a reserve fund funding plan. It can include time frames established under the Act for certain matters to take place. For example, how many times have you heard a unit owner complain (particularly under the old Act) that the notice period for the Annual General Meeting was too short to allow for proper preparation? Similarly, how many times have you seen a requisition being incorrectly submitted calling for the unit owners to have some input into a financial decision? Although the structure of a condominium community is established by the Act and the condominium corporation documents, there is still much that can be adjusted to lessen potential sources of conflict.

5. History: History leaves an indelible imprint on us all. The experiences making up our relationships and our experiences of trust, honesty, integrity and fairness, all influence how we deal with issues. History, particularly if it is bad, cannot simply be forgotten. However, if history is acknowledged (good or bad), it can be used as a building block or lesson upon which to continue and build relationships.

Mediation gives us the opportunity to sit down and discuss, with a facilitator, how needs and interests can be addressed; some or none of which may be dealt with in litigation, a rights based setting. If more can be done to address matters which give rise to conflict, it may just be possible to avoid the conflict escalating into a dispute. 

From “Common Elements” Summer 2003
By Richard A. Elia
B. Comm. LL.B., LL.M. (ADR), A.C.C.I.

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All of the information contained in this article is of a general nature for informational purposes only, and is not intended to represent the definitive opinion of the firm of Elia Associates on any particular matter. Although every effort is made to ensure that the information contained in this newsletter is accurate and up-to-date, the reader should not act upon it without obtaining appropriate professional advice and assistance.


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