The Wisdom of Water
I tried over 60 trials to verdict, litigated at least a couple hundred more, and counseled clients on perhaps five hundred disputes during my 25-year legal career. Along the way I learned, sometimes the hard way, an especially important concept involving legal disputes:
Often, the best route to resolution—like water—is the path of least resistance.
No, not every legal dispute can be settled by giving in and rushing to settlement. That strategy does not work when parties are fully entrenched in protracted litigation. My point, and my experience handling disputes, is that many conflicts can be resolved early, prior to both sides becoming embedded in their positions, and well prior to legal fees skyrocketing.
There is a window of opportunity early on in a dispute to reach resolution. But once that window closes, the next opportunity does not avail itself until well along in the process—often after litigation has commenced.
It is said that over 95 percent of civil legal disputes are resolved short of trial. In other words, in over nine out of ten cases, the parties reach an agreed resolution; which means that some level of compromise has occurred. If, ultimately, the parties are going to settle, doesn’t it make sense to be open-minded to compromise from the outset?
For community association boards or owners involved in a clash, I recommend the following course of action:
Read, understand, and follow your Governing Documents and applicable state laws. The key to almost every community association dispute lies in the documents. Make sure you are reading and following the appropriate sections or provisions. I can’t tell you how many times one of the parties has cited the wrong statute—one that does not even apply to that association.
Consult with a professional. Instead of relying upon an unqualified expert (we used to call these people “sea lawyers” when I was in the Navy), make sure you seek guidance from your professional manager, or seek counsel from qualified legal counsel or other expert qualified to assist in your matter.
Treat the other party with respect. Vitriol and rudeness are the breeding grounds for conflict.
Remain open to a differing conclusion. Reasonable minds may disagree. Even after reviewing the proper section or provision of the Governing Documents or statute, interpretations may vary.
Always, always, always utilize common sense. Does it make sense to go to battle, risk tearing apart your community and incurring tens of thousands of dollars, or more in legal fees over an issue that can be resolved with minimal compromise?
Lastly, remember you are all part of the same community. You will be neighbors long after the dispute ends. Better to solve the problem cooperatively than rely on a judge or jury where one party will lose and likely hold onto resentment for a prolonged time.
Sure, some disputes will only be resolved after a lengthy court battle. But for a large percentage of “neighborly” community association quarrels, it might be helpful to follow the guide of that droplet of water you see trickling down the side of the house—by following the path of least resistance.