The Condominium Authority of Ontario (CAO) added a section to the dispute resolution part of its website this fall. The new material provides guidance where the Condo Act requires mediation and arbitration. It was developed in response to feedback from condo communities asking for help to navigate the dispute resolution process.
Some condominiums have no guidance at all around how to engage in mediation or arbitration, even when it is required by law. Others have by-laws that are so detailed they are near impossible to follow. Examples include a requirement that the mediator be part of a roster that no longer exists or underlying assumptions that there are more potential service providers available than there are.
Another challenge is understanding which disputes must go through mandatory mediation and arbitration and which can proceed to the Condo Authority Tribunal or to court, when matters cannot be sorted out by those involved on their own. While the Condo Act provides general guidance, it doesn’t spell out the process practically. That leaves uncertainty for people initiating and replying to submissions to mandatory mediation and arbitration, particularly those who haven’t been through it before.
While each community has flexibility to customize these processes, some commonality was identified across the province in terms of support needs. This summer, the CAO engaged with people across the sector—including owners, directors, lawyers and managers—representing a range of experience. There was widespread agreement on the type of help needed, which guided the development of these new resources.
Lawyers confirmed that mediation, when done well, can save everyone significant time and money. Owners and directors explained that they often want to resolve issues early but don’t know how to start the conversation in a constructive way. What became clear is that the type of information that is helpful in setting mediation and arbitration up for success is practical and step by step. Resources can help those navigating condo conflicts “build up their skills as they play,” supporting ongoing relationships, collaborative problem-solving and attaining closure.
To assist in finding mediators and arbitrators, a collaboration has been developed with the ADR Institute of Ontario to help identify qualified professionals. While there is no endorsement of specific service providers, and no requirement to engage only these dispute resolution professionals, their designations indicate that they have met established national standards.
Yet, being qualified to mediate or arbitrate isn’t enough. Conflict within a condo setting is often complex. Consider the condo’s role in a spat between neighbours or the impact of a standard unit definition on the allocation of responsibilities. There is often more to these disputes than meets the eye. Feedback received reinforced how critical it is for mediators and arbitrators to understand how condos work, and the risks that can arise when they do not.
One example is the story of an experienced family mediator who decided to try their hand at condominium dispute resolution. In the course of exploring settlement options to resolve an issue between an owner and their condo corporation, the mediator suggested that the condo buy the owner’s unit. When asked by the parties how the condo could afford to do so, the mediator suggested the condo use its reserve fund, failing to appreciate that the Condo Act establishes that reserve fund monies can only be used for the major repair and replacement of the common elements and assets of the condominium.
A mediated settlement that calls for a condo to misuse its reserve fund doesn’t work, and can ultimately make the situation worse for everyone involved. While mediators do not offer legal advice, good mediators see themselves much like surgeons—they aim to ensure that no one leaves the process worse off than they arrived. That risk becomes very real without a base level of understanding.
To address these challenges, the list offered by the ADR Institute of Ontario identifies mediators and arbitrators who the Institute designates as qualified to mediate or arbitrate, and have confirmed that they have completed the CAO’s free, online training and have a base level of understanding of how condos operate. While this training does not make someone an expert, the foundational education is a good place to start. The training is mandatory for condo directors and has proven useful for people who aren’t. Lawyers, condo managers and other professionals often take it voluntarily to gain practical insights into how condos operate and common challenges.
To support proposing and replying to invitations to participate in mediation or arbitration, five optional one-page forms are part of the new materials:
- Notice of Submission to Mediation;
- Response to Notice of Submission to Mediation;
- Mediation Report;
- Notice of Submission to Arbitration; and
- Response to Notice of Submission to Arbitration
The intention is to help overcome challenges, such as when someone wants to mediate but their approach is perceived as a demand rather than an invitation to collaborate, or when someone receives an offer to arbitrate but isn’t sure what arbitration involves or how to respond. The offering of clear, neutral templates and information is designed to help set the right tone from the start and make it easier to focus on working together.
The idea is to focus on broadening understanding of what mediation and arbitration are, supporting the process of agreeing on a mediator or arbitrator, and going from there. Once involved, the dispute resolution professional’s expertise can help sort out process details like if you will be in-person or online, the volume of materials and other specifics that can complicate and derail things. These new support materials are designed to help folks who would benefit from the opportunities mediation and arbitration offer, especially in situations when they are required to.
Marc Bhalla is Vice President of Policy, Programs and Dispute Resolution at the Condominium Authority of Ontario.
