Mediation in co-ownership issues
by Emmanuelle Gril
Journal du Barreau, mach 2007
« The role of the mediator is to help finding solutions and to determine a way of life making everyone happy. In this frame suggestions can be made, but nothing should be imposed. »
Mediation and arbitration in co-ownership issues offer many benefits, among which speeding up the process is not the least. This swiftness is very important to people having to meet every day in an elevator while they are in conflict.
Mᵉ Yves Papineau is a lawyer and a mediator. He works in co-ownership issues and acts regularly as mediator in this field. He points out that there are two kinds of problems in co-ownership: money issues and cohabitating with neighbours.
« The complaints come under different forms. There are complaints between co-owners and complaints of the syndicate or of one its directors against a co-owner. », explains Mᵉ Papineau.
At the beginning of a mediation process, the parties must commonly chose a mediator and tell him what the issues are and their relative positions in regard to them. This information may be transmitted in print or verbally in individual meetings. « This gives the mediator the opportunity to grasp the essence of the dispute, identify the different problems and to start discussions with the parties. Afterwards, there is a group meeting where everybody state their claims. At this point, we draw a summary of the situation and focus can be made on particular aspects. People may talk to each other, ask questions and make proposals. »
Mᵉ Papineau adds that co-ownership issues are not impossible to resolve. Most often, it's only about small irritating problems related to pets, noise, etc. « The role of the mediator is to help finding solutions and to determine a way of life making everyone happy. In this frame suggestions can be made in this frame, but nothing should be imposed. »
In the end, after the parties have agreed on a solution, the mediator writes a convention by which they all agree to abide. « Without having the force of a judgment, this convention is a moral bind between the people. », says Mᵉ Papineau. He stresses that, just like during arbitration, if the parties wish so, it is not necessary to be represented by council during mediation.
In some cases mediation is not possible. « When there are too many irritating matters or issues, arbitration appears to be a better solution. I once acted as arbitrator in a case where a co-owner living on the third floor with young kids had removed the carpeting. The noise was too much for the co-owners living below and they complained. They wanted the carpeting back but the third floor co-owner would not comply. Mediation was impossible in this case because the parties were tight on their positions. There, arbitration was more appropriate. » The arbitrator may be a judge, a lawyer, a notary or any other able person. If the parties cannot agree on a single arbitrator, each one can designate his own. Them a third arbitrator, chosen by the first two, is designated. Next, the parties will submit their claims and explain their pretentions in writing to them. After that, a meeting is scheduled to hear the parties out. « The place of the meeting does not have to be formal: it could be the local where the syndicate of the co-owners usually meets, says Mᵉ Papineau. This meeting proceeds in the same way as in court: each party speaks and offers witnesses, the lawyers plead and produce case law. In the end, the arbitrators will decide. If not unanimously taken, the decision of the majority will prevail. Once it is communicated to them, the parties will have to comply to it. If they refuse, it will be brought in the court to be confirmed. After that, it will become mandatory, just like a judgment. »
Mᵉ Papineau wants to point out that it is sometimes possible to have a mediation for some problems and an arbitration for others. « There are cases where agreements are almost at hand for many of the problems examined. For example, if the syndicate of the co-owners complains that someone vacuums too early in the morning, it should be easy to find an understanding without going through arbitration. So, it is a rather flexible system. »
Mᵉ Papineau says that slideslips are frequent in the co-ownership world. « If a co-owner decides to install a parabolic dish on the balcony despite a by-law forbidding it, another may feel justified to fix a clothes line, and another to buy a pet, etc. ». In the co-ownership world, the irritating problems will multiply rapidly and the situation will become very difficult since the injunction is the only recourse possible. But it takes between five and seven months to obtain one. « When the person with whom you fight lives in the same building as you, it's very hard to manage on a daily basis. Mediation and arbitration being much faster than court proceedings, everything could be settled in two or three months, which is much better than one or two years in court. »
Mᵉ Papineau adds that this way of resolving conflicts generates much less stress for the parties, especially because having to go to court is a well known source of anxiety for most people.
The level of satisfaction is generally good, even if frustration is noticeable in some cases. « A party may feel injured when it has lost on almost every issue. He might think that going to court would have been a better idea. Still, a lot of education work has to be done, in the measure that people do not always understand how mediation and arbitration work. It's important to accept that problems will not disappear by magic, just because an agreement was reached. But when everyone acts in good faith, says Mᵉ Papineau, things usually go well. »
« Group » Mediation
Mᵉ Yves Papineau is often asked to speak before groups of co-owners and to answer their questions. « In the co-ownership world, people tend to believe almost anything. ... "My brother-in-law told me..." When I explain the law to them and tell them what can or cannot be done, it put things back in perspective. Giving them the right time of day unfuses the potential conflicts. It's just like a "group" mediation! ».