Disputes frequently occur in community association living, whether between neighbors, an owner and the Board of Directors (“Board”), or among the Board members. People have competing interests and different views. When these interests and views are incompatible, conflicts can arise.
If left unresolved, such conflicts can quickly escalate, become emotional and personal, and ultimately block community productivity and collaboration. When faced with a difficult conflict situation, the following is a progression of how a conflict may proceed. However, the goal is to seek timely and successful resolution of conflict as soon as possible which may preserve and improve relationships, foster community growth and positive change, and ultimately save time and money.
Do not make a mountain out of a mole hill. If the problem situation is not criminal and has only happened once, it may be an isolated incident. Instead of racing out and demanding immediate corrective action, remain calm and wait twenty-four hours for perspective on whether the behavior is as problematic as you initially perceived. After proper reflection, you may discover that you are not as upset by the situation, which may save you from an impulsive and confrontational encounter that you may later regret.
Do not avoid the topic or source of the conflict. When the problem is on-going, the situation needs to be addressed. People tend to avoid one another when faced with an uncomfortable or contentious situation. However, as long as the situation is safe to discuss the problem rationally, the affected parties should talk about the issue. Generally, people do not intentionally want to be the source of a problem for others. Therefore, an open and courteous discussion to voice and listen to concerns may reveal that the underlying issue is a simple misunderstanding among the parties. Once addressed, each party may begin to understand the other’s interests, needs, and goals which may quickly lead to an acceptable solution for all.
Recognize when you need outside help. If opposing parties are at an impasse and cannot successfully resolve the problem on their own, an acceptable neutral third-party mediator may be useful. Mediation can occur before litigation and may be required by the court during litigation. Mediation is a non-adversarial process that is less costly than arbitration or litigation. It is a confidential and informal process where the parties can express their respective concerns and grievances to the mediator. The mediator does not have the power to decide who is right or wrong in a conflict. Rather, the mediator listens to opposing viewpoints and goals to help facilitate the parties’ negotiations and collaborative problem solving. Ideally, the parties will reach a mutually acceptable voluntary agreement that fairly resolves the problem for all parties. Mediation can be pursued through community based mediation programs, private mediation, or through the Colorado Judicial Department Office of Dispute Resolution. Mediator costs can vary, but average about $250.00 per hour.
Carefully consider arbitration or litigation. Once the problem has is beyond resolution through negotiation and mediation, the parties may decide the only option left is to arbitrate or litigate the matter. Unfortunately, this may be necessary when the parties are too focused on their own objectives to successfully compromise. Both of these alternatives are highly adversarial, lead to unpredictable results, and the associated costs can quickly exceed the damages caused by the initial problem. Thus, you should carefully consider whether this is the most effective way to resolve the issue.
Arbitration can be binding or non-binding. It typically is a faster process than litigation. The parties select a neutral and acceptable arbitrator, who after reviewing the parties’ written submissions, testimony, and other evidence, renders a decision based upon liability and awards damages. If the arbitration is binding, the parties are contractually bound by the arbitrator’s decision and award. If the arbitration is non-binding, the parties are free to continue to pursue their claim through the court system where the arbitrator’s reasoning and award are likely inadmissible. Arbitration costs can vary depending on filing fees, the hourly rate and expenses of the arbitrator, and whether a standard hearing, telephonic hearing, or documentary hearing is utilized. However, the costs for arbitration alone can quickly add up to several thousand dollars. This does not include any attorneys’ fees or costs if you are represented by counsel.
Litigation should be your last resort. Before utilizing the court system, you should meet with legal counsel to evaluate the strengths and weaknesses of your claim to determine whether you have a strong enough case to win. Litigation takes time and is expensive and stressful. Therefore, you need to make sure you want to spend the money, time, and effort to see the case to resolution. Counsel can assist you in evaluating the claim and provide a preliminary litigation budget that will outline whether it is appropriate or beneficial to litigate.
Additionally, you need to review your community’s Dispute Resolution Policy and Procedure (“DRP”) which is required under the Colorado Common Interest Ownership Act section 38-33.3-209.5(1)(b)(VIII). If your dispute is with the association itself, then you may be required under the DRP to request and attend a hearing with the association Board of Directors to explain the grievance and attempt to amicably resolve the problem prior to filing any lawsuit.
Remember these are your neighbors. At the end of the day, unless you decide to move, you will still live in the community and could encounter the offending party for many years to come. Calm communication between affected parties is key to quickly and inexpensively resolve a conflict in its earliest stages. Neighbor and community relations may be permanently damaged from contentious and expensive litigation which may negatively outweigh any benefit received from a court ruling in your favor.