Real Estate

Open-minded approach to condo mediation pays dividends

By AdvocateDaily.com Staff

Approaching mediation with an open mind can improve the chances of settlement, says Toronto condominium and commercial litigator Megan Mackey.

Under the province’s Condominium Act, mediation is mandatory for any dispute about shared facilities between a unit owner and the condominium corporation, except for those occasions when the safety and security of a business or residence are at risk, explains Mackey, a partner with Shibley Righton LLP.

As a result, she admits she's entered the mediation process expecting little in terms of resolution.

“Because it's something the parties are being forced to do, you can sometimes go in thinking there's no chance of settling,” Mackey says. “But I’ve been involved in cases where the parties have surprised me by making a great settlement.

“Now I think mediation can work for any type of dispute, as long as the parties come to it with an open mind and are willing to listen to the other side,” she tells AdvocateDaily.com.

Mackey says the nature of condominiums means that disputes are inclined to involve high emotions.

“These are places where people live together, so there are often many layers to the arguments,” she says. “Sometimes you discover that the real problem driving the dispute is quite different from what you thought was going on.”

For example, Mackey acted in a recent case involving a unit owner in breach of the condo’s no-dog policy.

“The dog was barking incessantly during the day and was frightening people when the unit owner took it out for a walk because she couldn’t control it properly,” she says.

“During mediation, we learned that the dog actually belonged to her adult son who had moved in with her and that she was not all that happy about its presence.”

Mackey says the parties were able to come to an agreement that pleased everyone, including cost waivers and a transition period allowing the son to find a new place for himself and the dog.

In another case, she says a mediation session uncovered the real reason a unit owner had been sending strongly worded and defamatory letters to her neighbours.

“After listening to her, it became clear that she didn’t harbour any ill will to the others. She simply didn’t understand how the messages were coming across,” Mackey says. “The root of the problem was that she didn’t have a key to a storage room and didn’t know how to get one. The mediation helped the parties communicate better and move past their differences.

“Sometimes, when you get to mediation, you find that the parties aren’t necessarily opposed and you can work out a resolution where both sides get what they want without negatively affecting the other,” she adds.

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