Marc Bhalla B.A, C.Med., Q.Arb., MCIArb Condo Mediators
Dispute Resolution
Beyond the Act
Did you know that the mandatory mediation and arbitration provisions provided by the Condominium Act, 1998 (the “Act�) do not speak to the only circumstances where a condominium conflict is required to proceed to mediation and, failing settlement, arbitration instead of court? Unlike what is imposed by law, the other circumstances that I speak of are initially optional without many even realizing it until they are bound to alternative dispute resolution. I am referring to dispute resolution clauses in contracts that a condominium corporation enters into. Many do not bother to review such clauses, particularly as there are usually more contentious and important issues to negotiate. Yet, they offer tremendous opportunities and advantages if done right. Unfortunately, such clauses are not as standardized as many assume and they often get overlooked or taken for granted in the course of finalizing a contract. This can result in missed opportunities to avoid complication in the event that a dispute arises
and uncertainty when a conflict initially surfaces.
nity reputation and property value preservation.
The Advantages Effective dispute resolution clauses in service and other contracts offer several advantages to both condominium corporations and those with whom they enter into agreements: 1. Maintaining Privacy. In addition to being slow and costly, proceeding through the court system is public in nature. It can be preferable to everyone involved in a dispute to address it privately.
2. Process Guidance. A long standing criticism of the mandatory mediation provisions of the Act is that they require mediation yet fail to offer any process guidance or instruction as to the procedure to be followed.
Without prescribed forms to use to propose mediation, guidelines for mediator selection or anything more than a deadline after which mediation can be considered to have failed - even if it did not actually take place - the practical reality is that the first thing feuding parties need to do to address a dispute that falls under the mandatory mediation requirements of the Act is to agree on how mediation will come together. Similar frustrations apply to arbitration as well, unless the condominium has a good mediation/arbitration by-law in place to set this out.
The delay, frustration and cost that can result from this can be avoided if process guidance is offered up front. With respect to contracts, a dispute resolu-
Dispute resolution clauses in contracts can call for the private resolution of any dispute that may arise, avoiding the impact of negative publicity, regardless of the ultimate outcome of the conflict. This is simply an agreement between parties to the contract to address any disputes that may arise through private mediation and arbitration. From the perspective of a condominium Board, there is often merit in keeping conflict, and even possible resolution terms, away from the public eye – including in consideration of commu-
CONDOVOICE FALL 2019
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ILLUSTRATION BY JAMIE BENNET
When Mediation and Arbitration Are Also Mandatory