Mediation can save time and money in sectional title disputes

With the costs of litigation and arbitration becoming prohibitive, mediation is becoming an increasingly popular alternative for resolving disputes in the South African sectional title industry, according to Marina Constas, a specialist sectional title attorney and a director at BBM Attorneys.

As the head of a team that includes trained mediators who understand the intricacies of sectional title, she believes that mediation has a great deal to offer. In addition to saving money, mediation also saves time – an increasingly precious commodity in a fast paced world.

Mediation can be planned to suit the participating parties, so conflicts may be resolved much sooner than if the parties had to wait for a suitable court date. However, in contrast to arbitration, there is no obligation for disputing parties to try mediation. They must be willing to do so, she emphasises.

“The most important thing for all parties to realise is that although the most commonly cited benefits of mediation include saving time and money, this is not a short cut. One of the most common misconceptions about mediation is that it has no teeth. Parties to a successful mediation are able to enter into an agreement that may be made an order of court which holds the same weight and force as a decision of the court in the litigation process,” she says.

Mediation is particularly suited to situations where parties want a flexible and informal means of resolving a dispute. Mediation is also a perfect option in a complex case that requires a creative solution. Where each of the parties embroiled in the dispute requires some form of compromise from the other, this route also affords all involved the privacy needed to arrive at an agreement. Details of the dispute need not be disclosed and the parties can agree to keep the proceedings strictly confidential.

The main reason why mediation is a good fit for sectional title homes is the close nature of the relationships between the parties involved – and the fact that these are likely to continue after the resolution of the dispute.

“Because owners live close to one other and share common facilities, it is necessary to try and resolve disputes in a way that keeps the peace and fosters harmony. In fact, the informal setting and atmosphere of mediation, as well as avoiding the emotional stress and anxiety that many people feel when appearing before a court, can even improve communication between parties,” she says.

Constas says that mediation is particularly useful when it comes to the enforcement of non-financial obligations, especially conduct rules.

“In one successful mediation, two warring owners came to an acceptable solution in ameliorating a dispute regarding noisy dogs. The owner accused of housing the problematic pooches explained how important the dogs were to her but acknowledged that they were bored. She agreed to get another neighbour to assist in walking the dogs more often and obtaining the services of an animal behaviourist to investigate their behaviour.”

Even when it does come to financial issues, she believes that mediation has the flexibility to quickly resolve matters. Where an owner knows and understands the financial obligations in respect of levies and charges but disputes certain amounts or is unable to pay the amounts immediately, mediation could serve as an advanced form of negotiation with a favourable outcome.

“Many examples can be drawn from real life matters involving the collection of arrear levies. In one instance, an owner needed to vent his anger and frustration at being consistently ignored by trustees when requesting information regarding the body corporate’s insurance policy. His way of dealing with the matter was to withhold payment of his levies. In the mediation, he spoke plainly of his frustration. The trustees had not realised that they had contributed to the situation. The mediator pointed out that you could not withhold levies for any reason whatsoever. Once the dust settled, the parties discussed settlement and a more acceptable way forward in dealing with queries,” she says.

Once those involved have elected to follow the route of mediation, they need to appoint a mutually acceptable mediator. The role of the mediator is that of an independent guide who is there as a go between and a catalyst to finding an acceptable solution and does not provide or impose a solution like a judge would.

“Mediation allows the parties to discuss the issues at hand, clarify details and misunderstandings, express their feelings in a controlled environment and understand each other’s underlying concerns. The mediator needs to facilitate constructive communication and ensure that the individual parties do not digress but focus on the matter at hand,” she says.

According to Constas, because of the consensual nature of mediation and the control parties have in determining the outcome, they are more likely to comply with the mediation agreement. Parties are also likely to feel more satisfied with the outcome when a decision is not simply handed down or decided upon in favour of one party and against the other.

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