Description of the program:
The State of Hawaii Real Estate Commission administers a largely subsidized program providing facilitative and/or evaluative mediation assistance to resolve issues and concerns concerning the interpretation or enforcement of a condominium association’s governing documents, rules and policies.
Section 514B-161, HRS, requires mediation if a condominium owner or the board of directors requests mediation of a dispute involving the interpretation or enforcement of an association’s declaration, bylaws or house rules.
Overall Goal:
When parties are willing to mediate in a good faith attempt to search for resolutions to mutual problems, they nearly always succeed. Through mediation, parties maintain greater control over the outcome and resolution of their conflict and usually with substantial savings of cost, time, opportunity costs and aggravation. In mediation, parties are encouraged to exchange important information so that all parties can fully and adequately assess the situation in order that productive, practical and sensible business decisions can be made. If this can be achieved before avoidable and unnecessary litigation expenses are expended, parties are better able to use their resources more productively and to reach reasonable and realistic agreements.
How to get started?
- Notify the Association (Board officer, attorney and/or property manager) by email or letter that you are requesting mediation of your issues and concerns regarding the operation, actions of policies of the condominium.
- Identify or describe the issues and concerns that need to be addressed.
- The Association is obligated to mediate if your issues and concerns relate to the interpretation, applications or actions relate to the governing documents of the Association (Declaration, By Laws, House Rules) or arise from policies and actions of the Association or Board.
- Upon getting confirmation that the Association a to participate in the mediation, discuss or communicate with the Association the selection of a mutually acceptable Mediator.
- Contact or notify the selected Mediator that you and the Association wish to proceed with mediation of the pending issues and concerns.
- Work with the Mediator to schedule the mediation, any desired or needed exchange of information and meeting logistics such as the date, time and place, whether the meeting will be held in person, via Zoom or a blend of in person and virtual participation, who will be participating, etc.
Flexibility of Process.
Parties and the Mediator should confer and determine how best to conduct a safe, confidential, productive and fair process. The mediation process is very flexible. Customarily, parties will have some pre-mediation discussions and exchanges of information in preparation for a meeting of the principals, representatives and their advocates to meet in person to discuss their respective views, positions and concerns with the hope and objective to achieve a mutually agreeable resolution to existing claims and issues. During one or more mediation sessions, parties can meet jointly with the mediator. More frequently, parties separate into private rooms for confidential discussions and the mediator shuttles between the different rooms. Parties are free to customize and adapt the process to fit their preferences, needs and the specific circumstances of each case.
The Mediation Process.
The greatest advantage of mediation is the flexibility of the process to adapt to the special facts and needs of the parties. Parties resolve their disputes in a private, confidential and informal manner with direct involvement of the disputing parties.
Be creative and open to possibilities. Mediation allows for “win-win” resolutions. Parties should be prepared to listen and look for all possible options and packages of possible solutions. Understanding the stated and unstated needs, hopes and dreams of the parties involved can help to fashion resolutions tailored to meet their special needs and interests. Many times, solutions are not the ones thought of prior to mediation. Many things are possible in mediation that may not be available in litigation or arbitration.
– Come to the mediation with a mindset you are there to get the dispute settled and you will do everything within reason to build a solution on which all can agree.
– Commit the time, energy and attention to participate meaningfully in the mediation. The active participation of all necessary decision makers is critical for a productive and successful mediation.
With practice and good preparation, having a productive and successful mediation will be enhanced.