From the British
Columbia Arbitration and Mediation Institute
A STRATA MEDIATION PILOT PROGRAM
1.
What is mediation?
2.
What is the Pilot Program?
3.
How do I start a strata property mediation?
4.
How is a mediation scheduled?
5.
How much does it cost?
6.
How do I prepare for mediation?
7.
What will the Mediator do?
8.
What happens at the end of the mediation?
1) What is
mediation?
Mediation
is a process where people in dispute appoint a third person trained in conflict
resolution (the Mediator) to help resolve the situation. The Mediator guides
the process and helps the people in dispute work out a solution that is
satisfactory to them. A Mediator helps them to communicate with each other in a
safe environment, encouraging them to actively listen to what the people are
saying and ensuring that each person has an opportunity to express themselves.
Through mediation people in dispute gain a better sense of their interests,
which are then used to build the basis of a mutual agreement. The Mediator does
not impose a decision and if the disputants do not reach an agreement, their
right to pursue legal channels is preserved.
Mediation
is a confidential process, which means that the participants cannot later be
held bound by their settlement discussions. As a result they are free to be as
creative as possible without worrying that it will come back to haunt them.
Because
mediation builds understanding between people, it is an excellent process for
resolving disputes in strata property conflicts. In order to maintain a good
quality of life, strata property residents, owners, councils and managers need
to be able to resolve conflict without damaging relationships.
2)
What is the Pilot Program?
The
Board of Directors of the BC Arbitration and Mediation Institute saw a need to
provide the strata property community with a timely and cost effective
mechanism for resolving disputes through the use of qualified and competent
mediation services. A task force was created to work on developing these ideas
and the Pilot Program is the result. Currently there are 26 highly qualified
Mediators in various locations throughout the province who are available to
mediate strata disputes. Until the program is established only disputes that involve
the interpretation and implementation of a strata corporation's bylaws will be
accepted.
3)
How do I start a strata property mediation?
If
you are involved in a dispute, or know of people who are involved in a dispute
that might be helped through mediation, you could consider doing one of the
following:
Once you and the other person have agreed to go to
mediation, you can either call BCAMI for the Application Form and Agreement to
Mediate or alternatively download the forms from their website. [Refer to the
last page of this form for contact details]. Once you have completed both the
Application Form and the Agreement to Mediate form and included the signatures
of all parties, submit these two forms along with the required fee payable to the
BC Arbitration and Mediation Institute. The BCAMI will then appoint a Mediator
from the list of Mediators for the Pilot Program.
4)
How is a mediation session scheduled?
Once
BCAMI receives the completed forms, they will appoint a Mediator who has 5 business
days to accept the appointment. Once the Mediator has accepted the appointment,
they are obliged to call the parties within 5 business days in order to
schedule a mediation session. It is then up to the parties and the Mediator to
schedule the mediation and any further sessions if required.
5) How much does it
cost?
There
is a flat fee of $350.00 plus GST and the costs of room rental and travel, if
necessary. Of the flat fee, $100.00 (plus GST) is paid toward the
administrative costs of the program and $250.00 (plus GST) is paid to the
Mediator for a two-hour mediation. After the fee is paid and the Mediator is
appointed, the fee will be forfeited if any of the parties cancels the
mediation. The fee will not be forfeited if the mediation is rescheduled. All
Mediators who participate in the Pilot Program have agreed that they will
charge $175.00 per hour plus GST for any mediation services after the first two
hours.
The
Task Force that developed the Pilot Program proceeded on the assumption that
the fee differential would achieve the following objectives:
a)
Give the
parties excellent value for professional service for the fixed fee part of the
mediation.
b)
Compensate
Mediators at closer to regular rates for work beyond two hours, and
c)
Give the parties an incentive to prepare well for
mediation and focus during the mediation.
6)
How do I prepare for mediation?
a) Thinking about the mediation
b) Ensuring that you have authority to
settle
c) What do I need to bring?
6a) Thinking about the mediation
What
follows are some thoughts on what you can do to prepare yourself for an
effective mediation.
The
most common style of mediation in BC is "interest based mediation".
Mediators who practice this style of mediation encourage parties to examine the
reasons that have caused them to take a position in the conflict. What are a
person's fears, concerns or hopes; what is a person's motivation?
When
preparing for a mediation it is important to know which bylaw, or bylaws, are
in dispute. Examples of bylaws in dispute may include: noise, alterations,
pets, flooring, cleanliness, rentals, parking, smoking, insurance, etc.
However, it is important to note that since bylaws are unique to each strata
corporation your strata may be experiencing a dispute regarding a type of bylaw
not mentioned.
To
assist yourself in preparing for mediation, try to gain a better understanding
of your hopes, fears, motivations, etc. If you come into the mediation with a
better understanding of what your motivations are, then it will assist the
Mediator in helping you move forward.
As
mediation is assisted negotiation at its most basic, it will be helpful if the
parties can approach the negotiation with the following ideas in mind:
I. Negotiate in good faith with a view
to reaching a conclusion to the matters in dispute.
II. Seek integrated outcomes during the mediation
making efforts to work with the other party, sharing your interests and
brainstorming potential solutions using the combined resources, originality and
experience of the disputants.
III. Articulate your interests and the
interests of those you represent.
IV. Understand the interests of the
other participants whether or not you agree with them.
V. Identify solutions that meet the
interests of all parties.
6b) Ensuring that
you have authority to settle
The
disputants must ensure that each person who has a final say about whether an
agreement meets their needs or not is present to participate in the mediation.
This is referred to as the authority to settle and is a very important element
of the mediation.
6c)
What do I need to bring?
The
disputants should bring to mediation all of the documents, reports, photographs
and other evidence which relates to the issues in dispute. A person cannot go
wrong by bringing more material than they may need. Sometimes the mediation
cannot proceed where a critical document is not present.
7)
What will the Mediator do?
The
mediation usually begins with personal introductions and the Mediator
discussing the mediation process and describing what the parties can expect.
The Mediator will also review the terms of the Agreement to Mediate and ensure
that every participant, including the Mediator has signed the agreement.
When
the groundwork has been covered, the Mediator will ask each person to make some
introductory comments about the conflict and the problems they've encountered.
That will lead to a further discussion about what occurred, an identification
of the issues and brainstorming about potential solutions.
8) What happens at
the end of the mediation?
Where the parties have reached an
agreement at the end of the mediation, the Mediator may:
a) Draft a memorandum of understanding
that the parties can take to outside counsel for independent legal advice.
b) Draft a memorandum of understanding,
which the parties can sign without the benefit of independent legal advice
c) Draft a mediation agreement if the
parties have been represented by lawyers and send it to the lawyers for
signature by their clients.
Where the parties have not reached an agreement,
they are free to proceed with any other action they are entitled to take as
though the mediation had not occurred.
Finally,
the Mediator will ask every participant in the mediation to take a few moments
to complete a "participant questionnaire" which will assist us in enhancing
the program.
Contact
Information:
B.C. Arbitration & Mediation
Institute (BCAMI) Suite 500 -1311 Howe Street
Telephone:
(604) 736-6614
Toll
free in B.C.: 1-877-332-2264 Fax: (604) 736-9233
Email: info@bcami.com
Website:
www.bcami.com