Expert: Timmy Chou - 7/30/2003

Question
I live in a Deed Restricted community, I own a 4 bdr/3 ba home on a peice of property approx 1/3 acre corner lot, one of the first houses seen when entering our association. I also run a home based business of which is only managed at my home. One of my vehicles is a 1/2 ton work van a clean vehicle with nothing hanging off from it, e.g. ladders or pipes and it has lettering on it. I've received compliance letters from the board members about parking my "Commercial Van", as they call it, in my driveway. According to them I am "in violation" and cannot park a van in my driveway overnight, it must be in the garage. I asked them what their definition of a commercial vehicle was, they responded with "We don't have one yet but adopted county code for now". I've also been visited by a county code enforcer telling me I cannot park my van in the driveway of a residential unit at anytime. I asked where I can obtain this text for this code. I retreived it on line. Commercial vehicle is stated to be 25 ft or greater in length, 1 ton or better rating, ladders or pipes hanging from it and "Lettering" on a vehicle in and of it's self does not justify a commercial vehicle. I contacted the code enforcers superior and had him clarify this and he said his officer is wrong and he will correct him and no longer bother me. Although my association is still giving me problems, what can be done about this and if they adopt a new code of their own to include my van will I have to find a new location for my van at my expense just because they have other owners that do not like my van in my driveway. The association has succeeded in intimidating/threaten others in our association to remove lettering which has cost them hundreds simply because they were not familiar with the code content.

Answer
Thank you for your question.

Mediators act as neutral third parties to disputes and never "get involved" in judging the merits of conflict, but merely use special techniques to assist the parties in solving dilemmas.

Therefore, I can only respond to your question from my business consulting experience.  Note that this may ultimatly be a legal question and you may wish to consult an attorney.

The situation you are describing is one of the more difficult types of mediation presentations in my experience because structurally an individual is trying to negotiate with an organization.  Organizations make poor mediation participants because: (a) they hold the cards (or they think so); (b) true motivations and needs are hard to pin down: and (c) people are reluctant to get creative on behalf of an organization.  So the "group think" likely just wants to do whatever it can despite the law.  This is poor raw material to work with in trying to legitimize and validate your position in a mediation.  

This is why government agencies and the like legislate and require mediation participation by large agencies--to protect the legitimacy of the individual claim.

So the battle is going to be an uphill one at best for you.  Here are a couple of ideas that you may wish to consider.  First, legitimize your argument.  Get the compliance people to write letters regarding your specific vehicle.  Have it inspected by them.  See if their are any cases of similar UNSUCCESSFUL court actions by HMA's against individuals.  The compliance people may know this or you can do research at a law library.  You must begin to draw a picture in very simple terms for them and take them through it step by step.  You may have to spend some time with an attorney to understand your leverage legally.  

Armed with the CONTEXTUAL support from recognized professionals in the field, you are in a position to convince the organization that your case has merit.  (as you have seen this is very tough with "amateur" organizations that my perceive themselves to possess more expertise than they really have)  

This exercise will position you as a reasonable, calm and sympathetic claimant and you should do your best to do this as professionally as you can, since you may be setting groundwork for the next level of incentive--which is of course exploring a court case.

If the above suggestion represents the "carrot" and does not seem to work, the next step should outline the "stick".  Obviously you would want to make clear, once you are sure your persuasion has failed, that you are willing to escalate the claim to the courts if you cannot negotiate a reasonable settlement.  

You have an ironclad document trail showing your attempts to work things out and the recommendations of others and evidence of your work in obtaining their opinion as good faith evidence of your non-confrontive preference.  A strongly worded letter to this effect begging them to avoid the legal confrontation and requesting a neutral mediator is a place to begin.  It may also be useful to involve the press if it is appropriate.

Organizations are typically narcissistic and inbred and sometimes have difficulty seeing policy in a balanced way.  They can measure the rightness of policy using the "60 Minutes" smell test.  If they are not anxious
to have the story aired on TV then perhaps they should re-examine their policy.  Nothing is more motivating than to have the press, or industry groups, or civil rights groups, or all of the above watching the developments of your case.

You may wish to consider starting to copy the press, and industry groups and others in all your correspondence with the organization.  Let them know you are serious, credible and determined and you will get them to the table.
Hopefully you won't have to compel them through litigation!

For your information, the pros and cons of the types of dispute resolution methods follows.

GOOD LUCK!

Arbitration, Mediation, and Litigation

Arbitration: the referral of a dispute to one or more impartial persons for final and binding determination outside of the judicial system

Benefits of Arbitration:

    Confidential, no public record
    Limited exchange of documentation, information
    Quick, don't have to wait for a court date
    Arbitrators have expertise in the subject matter and are trained in conflict resolution
    Cheaper than litigation
    Preserves business relationships

Negatives of Arbitration

    It's a compromise, no %100 winner
    Complex arbitration can be costly
    If not satisfied, may litigate the arbitration procedure
    Poor results with an unskilled arbitrator
    Both parties must agree to cooperate in the process

Mediation: the process by which parties submit their dispute to a neutral third party (the mediator) who works with the parties to reach a settlement of their dispute.

Benefits of Mediation:

    Neutral mediator can objectively suggest alternatives not considered before
    Parties are directly engaged in negotiating the settlement
    Can be quicker than litigation
    Less costly than litigation
    Preserves business relationships
    85% of American Arbitration Association cases mediated find successful solutions

Negatives of Mediation

    may not reach a binding decision
    unskilled mediator

Litigation: using the judicial system to resolve disputes

Benefits of litigation:

    a clear winner and loser
    uses a prescribed set of procedures
    more predictable outcomes
    is final

Negatives of Litigation:

    waiting for court dates can do more harm
    usually more expensive than mediation and arbitration
    part of the public record