Mediation and arbitration are often ploys to gather evidence in disputes

Posted on October 24, 2015 by admin

By Donie Vanitzian, JD

Question: To resolve ongoing issues with my homeowner association last year, I entered into internal dispute resolution. This year, I agreed to attend mediation process over a different issue after directors led me to believe they wanted to resolve the problem. They instructed me to bring my documents and any evidence to support my position.

Each time I presented my case, they listened, asked questions, took notes and made copies of my evidence. The directors did not provide any documents to support their position. Each time, they ruled against me, so I decided to sue.

During litigation, the association used that evidence against me. They already knew my arguments because they had me perform a dry run during these meet-and-confers. What can I do to protect myself in the future?

Answer: Protect yourself by being better prepared. There was no advantage disclosing everything you had in advance, yet you handed all your evidence to the association for free.

Often internal dispute resolution, mediation and even arbitration are used to gather evidence against the other party. Any evidence you volunteer to the board, individual directors, association vendors, agents, managers and management companies — even to your neighbors — may be used against you in a later proceeding.

Nearly every item, paper, photograph, correspondence, email or voice message that an owner or a renter generates is considered to have evidentiary value to the association.

Even though acting in good faith is a requirement in all association interactions, the term itself is nebulous. No laws prevent the association from stockpiling information on owners, then using it against them later. No laws prevent you from doing the same thing.

Even though the association may be able to obtain that same information from you during the litigation discovery process, its tools for gathering evidence voluntarily from you before litigation are limited. Therefore, internal dispute resolution, mediation, arbitration and informal meetings or correspondence with owners may be a way for the board to build a case.

Titleholders have more tools available to them without resorting to litigation, but they must be used properly. You can, and should, use written association document requests that are thorough and consistent. Every association and management response to those requests is evidentiary in nature.

Hold on to everything you receive — all notices, minutes, reports and correspondence — because they are admissible in a court of law. Any response related to your request, even a response or document saying the association has no documents, is valuable in preventing surprise documents from popping up later.

Next time you find yourself sitting across from an association representative, refuse to continue and then reassess your position if the representative demands to see your evidence but doesn’t provide the association’s.

Meet with experts outside your association for a realistic discussion of what your legal options are, with the view of avoiding litigation if possible, even if that means moving out.

Zachary Levine, a partner at Wolk & Levine, a business and intellectual property law firm, co-wrote this column. Vanitzian is an arbitrator and mediator. Send questions to Donie Vanitzian, JD, P.O. Box 10490, Marina del Rey, CA 90295 or noexit@mindspring.com.

Theresa Fogle says:

October 24, 2015

I like this. Duly noted. My HOA is disingenuous.