Choosing an ADR Service Provider requires careful investigation
Conflict and conflict resolution through ADR are a major component of the condominium lifestyle in Ontario. Living in a condominium is a difficult adjustment for many people and disputes are common. Condominium residents come from different backgrounds and cultures with different expectations of what condominium life will be like. The cultural differences are greater in the Toronto area than most places. People who do not know each other are put together in a situation where consideration for others and co-operation is a necessity. It is a more close living arrangement than when you live near others in a neighbourhood with less common issues. Many condominiums contain in one building or group of buildings, greater cultural and ethnic diversity than exists in most neighbourhoods.
Condo life is not for everyone and for most people it is a big adjustment from earlier living arrangements. Having a condominium dispute is like a disagreement within a family or a workplace, where the shared interests and close quarters make the dispute more serious and upsetting. Sometimes small issues (pets, parking, noise) which may seem petty to people who do not understand, are actually more of a problem than major financial or building structural issues. It is best to resolve any condominium dispute early by agreement and avoid escalating the conflict. That can not always be done. The law requires Mediation and Arbitration as a process for resolving most disputes instead of court.
For conflict resolution in your condominium you may require an arbitrator or mediator. Alternative Dispute Resolution, known as ADR is the prescribed method of resolving condominium disputes instead of court. In Ontario which has become Condoland, with more condos than anywhere else, there are many qualified arbitrators and mediators who are able to handle condominium disputes.
Finding an ADR service provider is fairly easy for lawyers, who are used to dealing with disputes and using Alternative Dispute Resolution. Lawyers also speak with lawyers they know who are more specialized in condominium issues and get advice. Most condominium corporations have a lawyer who is called on regularly for advice and to handle disputes that may get to the stage where mediation is requested. Condominium property managers as well, are familiar with the conflict resolution process, and often have experience with mediators and arbitrators who can handle a condominium dispute.
If you are a condominium unit owner and find yourself in a condominium dispute, that requires an ADR service provider, the whole process is somewhat of a mystery. These days most people start with Google where anything may come up in a search. Luckily, you have found this website as a resource which gives you information about the process and also makes available to you a choice of skilled arbitrators and mediators from whom to select one for your needs. Most likely you will be required to pay half the fee of the ADR service provider. With costs a serious factor, the range of hourly rates offered by our condo ADR group should be helpful to you in narrowing your choice. Check elsewhere and see what else you can learn about conflict resolution as you educate yourself about the process of finding an ADR service provider. If your condominium has a dispute resolution bylaw you should read it carefully. We hope you will come back here and select an ADR service provider from our carefully chosen group.
Typically a condominium corporation will suggest the names of two or three mediators or arbitrators and ask the unit owner involved in the condominium dispute to pick one or name an alternative. It is usually not difficult to get a resume to see the qualifications and background of the persons suggested. You may have to call directly to obtain a full resume and learn hourly or daily rates. Mistrust is normal in a dispute and it is quite proper to do some checking and considering alternatives before accepting a person recommended for ADR by the other side. There is nothing wrong with rejecting a choice of arbitrator or mediator because the cost is too high. With a mediator it is acceptable to speak with the proposed mediator first and get a sense of what they are like. Mediators are allowed to speak individually with parties, and that is part of the mediation process. That is acceptable because mediators are people who help you settle a dispute by participating in negotiation. It is important that they understand each party, their interests and how they feel about the dispute. Part of the process is speaking alone to each side during the mediation process and sometimes keeping information confidential. Most mediators in Ontario have excellent training in conflict resolution.
In arbitration, individual communication with the arbitrator is not proper, and parties to a dispute are not to discuss the dispute with the potential arbitrator ahead of selection. This is to prevent possible concerns about bias. Arbitrator bias or “reasonable apprehension of bias” is a serious issue. An arbitrator is not to act where there is a reasonable apprehension of bias. An arbitrator is essentially a judge who will decide the issues in dispute and must do that based on evidence heard with all parties present and having an equal opportunity to put forward their position. An arbitrator must not be made aware of settlement positions of the parties as it may affect how they decide the case.
If you try to find an arbitrator by calling the arbitrator directly about your condominium dispute you have a good chance of creating a situation where the arbitrator, after hearing from you, will become disqualified from acting as arbitrator because of their communication with you. The other party may be concerned about what was said and possible bias created by the first presentation of the problem. It is best to contact the arbitrator through an intermediary who may be their assistant or your legal representative. They can provide retainer information and get you answers to specific questions. Arbitrators need to avoid discussing the issues while trying to get a sense of the nature of the dispute and who is involved to see if there may be any pre-existing conflict of interest or reasonable apprehension of bias. It is safe to send an arbitrator you are considering an email that does not go into the facts in issue or merits of the dispute so long as a copy of the email is also sent to the other party to the dispute. Conference calls can be arranged with all parties participating. Even having your lawyer make an initial phone call to the potential arbitrator can raise apprehension of bias.
In choosing an arbitrator or mediator you should first consider the nature and complexity of the dispute. Sometimes technical or legal issues make it important to have an ADR service provider with specific skills or from a specific profession. Some disputes are best decided by lawyers, but usually having a lawyer as arbitrator will cost more. The ADR Institute of Ontario has both arbitrator and mediator members who must meet a standard of training to be accepted. The ADR Institute’s website includes information about their members and can help with the selection process. Experience is not always as important as the personal skills of the person selected. A good mediator or arbitrator is one with sufficient training in mediation or arbitration and the personal skills and knowledge that enable them to effectively deal with condominium disputes. Take a few moments to review the qualifications of our group members.