Cases that should have been Mediated: (3) The Sisters Upstairs and the New Hardwood Floors

Every now and then I hear about a conflict that wasn’t mediated but should have been.  Mediation would have saved the participants time, money and aggravation.  In this case, you do not even have to accept my judgement that the conflict should have been mediated.  Three Lord Justices of the England and Wales Court of Appeal stated that the dispute could have been resolved thorough mediation, without recourse to the legal system, for a fraction of the £140,134 (roughly $224,400 Cdn) that the disputants eventually spent.

The setting is “Eaton Mansions,” a tony block of flats in London, England.  The suit was brought by Mr. and Mrs. Faidi, who own and occupied Flat 6.  Sometime before 2006, the defendant, Elliot Corporation, acquired the lease for Flat 8, directly above the Faidis.  The new owners applied for and were given permission to carry out renovations, including removing the radiators, tearing up the wall-to-wall carpeting, putting a new radiant heating system in the floor, and installing new hardwood flooring.  They went through all of the proper procedures and got permission before doing the renovations.  In August 2010 the flat was leased to a couple with three daughters, aged 14, 12, and 5.

Sometime after the family moved in upstairs the Faidis brought a suit against the Elliot Corporation, charging that the day-to-day activities of their new neighbours caused noise and disturbed them.  They would be spared this disturbance, the claim argued, if the floors were covered by wall-to-wall carpets.  Indeed, each lease specifies that the floors (with the exception of the kitchen and bathroom) should be covered with carpet and underlay.  The defendant argued that when the renovation plans were approved the regulation about wall-to-wall carpeting became moot.  What would be the point of installing new hardwood floors, only to have them obscured by carpets?  Besides, the new heating system would not work effectively if the floors were carpeted.

Judge Freeland, who heard the original case, dismissed the Faidis’ claim.  He relied on expert testimony that the noise insulation installed when the new floors were constructed exceeded the minimum required by the building code.  The judge even went to the trouble of visiting Eaton Mansions to see the floor for himself.  The three judges who heard the appeal (Lord Justices Ward, Lloyd, and Jackson) concurred, finding that it would be “futile and absurd” to go to the expense of laying hardwood floors if they were destined to be covered up by carpets.  (You can read the full text of their judgment here.)

Litigation is adversarial by nature; outcomes are usually “all or nothing.”  Robert Pearce, the lawyer who presented the arguments for the Faidis’ appeal, proposed that a “moderate” amount of carpeting in flat 8 (say, in high traffic areas) would have absorbed some of the noise yet still allowed the residents to enjoy their new floors and benefit from the heating system.  The justices agreed that this would have been a sensible solution; however it was not one that the courts could impose.  The judges stressed that this outcome (strategically placed carpets) could easily have been achieved through mediation.  Justice Ward said it best:  “Not all neighbours are from hell. They may simply occupy the land of bigotry. There may be no escape from hell but the boundaries of bigotry can with tact be changed by the cutting edge of reasonableness skillfully applied by a trained mediator. Give and take is often better than all or nothing.”

Ironically, the Faidis no longer live in flat 6; their son lives there now.  And the family upstairs has also moved on.

Reproduced above:  The Daughters of Edward Darley Boit by John Singer Sargent (1882), currently in the Museum of Fine Arts, Boston.  Image from Wikimedia Commons.

Apprehension of Bias: When Should a Mediator Step Down?

I have been closely following the dispute between the British Columbia Teachers’ Federation (BCTF) and the BC provincial government over the appointment of Dr. Charles Jago as mediator. The teachers’ union and the government have been in disagreement for several months over wages and working conditions. The BCTF recently asked the B.C. Labour Relations Board to remove Dr. Jago because of an apprehension of bias.

One of the most important features of the mediation process is the mediator’s independence. Mediators are neutral parties, and not more or less sympathetic to any of the parties in a dispute. The ADR Institute of Canada’s “Model Code of Conduct for Mediators” is very clear on this point. Mediators are not supposed to have an interest in the outcome of the mediation process, or even in whether the parties reach a settlement at all. This is because mediation is meant to be a voluntary process in which the parties are self-determined. The success of mediation depends on the fact that people are more likely to respect agreements that they have entered into freely, and that they have had a hand in crafting.

The teachers charge that Dr. Jago’s links to the provincial government make it impossible for him to serve as an impartial mediator. According to the Globe and Mail, Dr. Jago told the union that he had agreed to serve as mediator in early February – before the BCTF was asked to put forth a list of acceptable mediators. (The union suggested two judges, neither of whom was available.) Dr. Jago also admitted to have seen and commented on the controversial new education bill before it was tabled in the legislature. These factors, coupled with Dr. Jago’s apparent lack of mediation experience, led the teachers’ union to suspect that the process as it has been structured is fundamentally flawed.

Dr. Jago, for his part, has refused to step down. As he wrote in a letter to the BCTF, “I assure you that I am impartial. From the outset, I have been clear that I will be fair and balanced in mediating this dispute.”

Dr. Jago’s unfortunate echo of the “Fox News” motto notwithstanding, he fails to show any realization that assurances of impartiality are beside the point. He may believe himself to be unbiased; he may in fact be completely impartial. But unless both parties in the dispute have confidence in his impartiality, it will be very difficult for him to succeed in mediating the dispute.

The Labour Relations Board has not yet ruled on the teachers’ request. (Indeed, it is not even clear that they have the jurisdiction to rule on it.) If the BC government is sincere in wanting a negotiated settlement to the dispute, they might do well to re-think the process of appointing a mediator. One possible strategy would be devise a list of three or more acceptable mediators and then invite the union to choose a mediator from that list.

Dysfunctional Condo Boards: (Part Two) Strategies for Getting Your Board Un-Stuck

In my previous post, I discussed ways of preventing condo board conflict.  This post discusses some typical problems that condo boards face, and offers some solutions.

The board is divided into two opposing cliques, with differing positions on every issue.  Discussions get personal really quickly.  We insult each other rather than discuss the problems in the building.  There is a real lack of civility, and nothing gets done.

There is nothing wrong with board members holding different points of view.  What is crucial, is how you discuss and debate the options before you.  Even if you have not already agreed to keep things respectful, it is not too late to discuss how you wish to interact as a group and to commit to some ground rules.

When any disagreements arise, focus on problems, not on personalities.  Keep the discussion related to the issues before you, and not on the personal qualities of the people involved. Your best strategy here is curiosity. Ask questions, and try to let go of assumptions you may have already formed.  Try to understand why others hold the views that they do. Is the other party drawing on different sources of information?  Do you have more fundamental disagreements, such as diverging opinions about the staff and the manager, or different views on what is most important in the building?  Once these disagreements are on out in the open, it may be easier to discuss them effectively and eventually to move beyond them.

Given that groups of people will always have points of disagreement, how can you disagree in a respectful, productive manner?  First, raise concerns about specific issues, not about the other person’s character or world view.  Second, speak from your own perspective.  Rather than say, “You are too stupid and short-sighted to understand the value of preventative maintenance;” try, “I am concerned that if we do not address this issue before the winter, we will have worse problems by the spring.”

Remember, you do not have to be friends with your fellow board members, just as you do not have to be friends with your co-workers.  All you have to do is co-operate on a limited number of tasks.

The board members don’t trust one another.

We are used to thinking of “trust” as a personal quality.  We feel that some people are worthy of our trust, while others are not.  But this is only one way to think about trust.  Another way of approaching trust is to see it embedded in rules, procedures and processes.  When you drive down a busy street, what makes you “trust” that the other drivers will stay in their lanes, stop for red lights, and (for the most part) drive with regard for the safety of others?  The other drivers are strangers, so it cannot be that you have personal feelings of trust towards them.  Instead, you have to put your trust in traffic laws and in the fact that the laws are generally enforced.

The rules and charters of your condo corporation are similar to the rules of the road.  Make sure that your policies, including your “Conflict of Interest” policy, are clearly written, and that all of the board members understand them.  Make transparency the norm, so that documents such as receipts, bids, and contracts are available to all board members.  There will always be specific individuals whom you may not trust, and others who may not trust you.  If everyone puts their trust in procedures and policies, you should be able to work together effectively even if you lack confidence in one another.

What to do if one or more board members consistently flout or disregard the corporation’s policies and resist transparency?  Condo boards sometimes control a great deal of money and, unfortunately, fraud may be a possibility.  Consider consulting with the condominium lawyer.

The board members get along well.  Meetings are very calm.  There are no insults or harsh words.  But there is also no lively discussion; no one asks questions or raises concerns.  In fact, no one says much of anything….

Your board may be well-mannered, but is it truly efficient and effective?  A board that seems harmonious and conflict-free might be as dysfunctional as the board that screams at one another.  The most effective teams are not necessarily always in agreement.  They may have intense discussions and disagree on any number of issues.  The difference is that they focus on problems, and not on personal differences.

Keep in mind that boards are accountable to condo owners and are supposed to act in the owners’ best interests.  Sometimes that might mean disagreeing with your fellow board members, raising concerns, and weighing the pros and cons of a number of different options.  Remember that questioning the advice of the condo manager or board president is not a sign of disrespect or disloyalty.  As long as you raise matters respectfully and refrain from personal attacks, bringing up legitimate concerns is part of being an effective and responsible board member.

The president dominates the board.  No one stands up to him, and some board members are even afraid of him.

It would be nice to think that we were through with bullies when we left school playgrounds.  Sadly, bullies can be any age and they are found in all walks of life.  Bullies rely on others being too afraid or too craven to stand up for themselves and for others.  If there is a bully on your board, you may have to tread very cautiously.  When you raise concerns, be extra-careful not to let the discussion get personal.  If someone gets personal with you, guide the conversation back to the issues under discussion.

Confronting a bully is hard, and you will have to decide yourself whether confrontation is the best strategy in your situation. We often focus on the costs and risks of acting, yet fail to consider the costs and risks of not acting.  Avoiding a problem almost always contributes to its longevity.  The longer you let others get away with bad behaviour, the harder it will be to call them on it in the end.

Finally, if you and your fellow board members are in conflict, think about what you might be doing yourself to contribute to the on-going poor dynamic.  Have you formed assumptions about the other members?  Do you fail to listen carefully, because you feel that you already know what they will say?  Are you so convinced that your own views are correct that you refuse even to hear about other options?  If you answered “yes” to any of these questions, you have taken the first step in realizing that conflict is two-sided, and perhaps the first step in turning around a dysfunctional board.

If the challenges seem too great for the board to turn things around on their own, consider bringing in a mediator.  Mediators are neutral third parties who are trained in conflict analysis and resolution.   They can help facilitate and manage discussion so that all parties are heard, tensions are diffused, and the board can get back to making good decisions.

Note:  I formulated these ideas with the help of Dr. Pamela Hudak, and a slightly different version of this article appeared in the Spring 2012 issue of The Condo Voice, a publication of the Canadian Condominium Institute.  Pam and I work together as Principled Dispute Resolution and Consulting.  Contact us if you’d like to learn more about getting your dysfunctional condo board working again.