Mediation, particularly when dealing with Sectional Title Conflict depends on frankness with the mediator:
needs, fears, underlying interests, reservations, bottom lines and options of each party need to become known to, and held exclusively by the Mediator for optimal outcomes.
Nothing gets ‘heard’ by the other party without explicit authorisation.
Like an iceberg, Sectional Title problems are seen ‘above the water’.
The visible tops of the icebergs represent the “positions” of the participants – what is revealed.
There may be enough common ground between the two ice caps to settle the dispute. But if there isn’t – solutions must be found between the giant ice masses beneath the water. Mediation works to find common ground, shared interests, and ‘tradeables’ that are ‘below the surface’.
Bound by absolute confidentiality, a Mediator’s function is to access the ‘agenda’ of both sides from an impartial standpoint. With this complete overview, the Mediator can hold the space for exploring creative solutions in private sessions. The Mediator will help generate ‘what ifs’ from both sides while keeping the process grounded in reality within a ‘big picture’ that takes the needs of both parties into consideration.
Mediation has advantages over negotiation.
Accessing these resources is difficult between Sectional Title Owners and often causes decline from a cooperative process (to satisfy the other party’s interests, needs, and wants) to one that quickly deteriorates in to arguments over rights. Rights are underpinned by an enormous body of rules, regulations, and laws related to the Sectional Title Act, the Community Schemes Ombud Service (CSOS), Body Corporate Bylaws, and more.
Assisted Negotiation improves the chances of keeping discussion focussed on each other’s interests.
Active listening is an essential part of the process.
Really being heard is generally rare and that’s no different with Managing Agents, Body Corp Chairpersons – or indeed – the other party. Venting is essential to get a balanced perspective that may result in more understanding of a disputant’s concerns, fears, or assumptions. Venting also serves to isolate that which is essential to reaching agreement from the many ‘non-key’ (often emotional) issues that stand in the way of consensus. Professional Mediators are trained to listen to what is being said and more importantly to “hear” what is not being said.
Concluded agreements, once reduced to writing and signed (ideally done there and then), becomes legally enforceable.
Lawyers are encouraged to be present in mediation
There is an advantage to having immediate access to a trusted advisor, and final documentation drafted by lawyers is usually more robust than when drafted by Mediators. This is particularly important in international agreements that need to comply with the requirements of more than one jurisdiction. Jurisdictional enforceability is essential, which makes it imperative for lawyers to agree beforehand precisely how a final agreement is to be dealt with.
The key is to have agreements signed and sealed before the mediation session ends.
If ‘left to the lawyers’ afterwards, the ground gained is at risk of being lost as ideas sometimes change from ‘interests and needs’ to ‘rights and positions’
The problem with communication is the illusion that is has occurred
~ George Bernard Shaw