Conflict: A Litigator's Perspective
Conflict: A Litigator's Perspective
March 1st, 2012
Author: Jeremy O. Evans
It may seem odd to look to a law firm for advice about conflict resolution. However, as litigators specializing in community associations, our firm sees all types of conflicts from start to finish. Believe it or not, we would rather assist our clients with preventative care than go to court with them over an avoidable problem (or see anyone get hurt).
This article will address two types of conflicts. The first is a face-to-face confrontation at a meeting; these occur at member meetings or board meetings.
Conflicts in meetings can be intimidating, however, they are relatively easy to control, especially with some planning in advance.
· Establish clear rules about who can attend meetings. For example, are board meetings open to all members? Can tenants attend the member meetings?
· Establish clear rules about how meetings are conducted. If state law or your governing documents do not specify governing rules, consider adopting Roberts Rules of Order as your community’s official rules of procedure.
· Always have a written agenda and follow it. This may be required by law if agendas were sent to all participants in advance.
· Enforce the rules. Ask uninvited guests to leave, or—in an extreme situation—adjourn the meeting.
Each of these suggestions simply involves adopting written rules and procedure or following procedures already in place. If you do not have procedural rules in place (or do not know if you do), contact your association’s legal counsel to review the relevant documents and law. A board resolution may also be required.
Next, we’ll look at a newly emerging form of conflict. Recently, our firm has received a lot of comments about heated and sometimes ugly email (or Facebook) exchanges regarding community decisions. While community disputes have always been with us, these new forms of communication make it easier than ever to publicize the disputes and all of their accompanying nastiness.
Often, these disputes are brought to our attention because a director or owner wants us to seek some kind of injunction, or even sue for damages, against the person making the unkind statements. While each situation is different, a court-based approach is rarely justified in even confrontational public exchanges. Seek advice from your association’s legal counsel about whether your particular situation is an exception to this general rule.
Just like meeting conflicts, this type of conflict is best prevented by taking some actions in advance. While directors may enjoy using email to communicate with members, they should show respect to all of the members by protecting the email addresses of the entire group. Emails should never be sent to the entire association membership without using the blind carbon copy (or BCC) feature to hide the addresses of all of the recipients. If an email is sent with the entire group openly copied, one or two people can fill the inboxes of the rest of the neighborhood with endless and acrimonious exchanges simply by hitting “Reply All.”
If that ship has already sailed and large-scale email exchanges have already commenced, the board (who hopefully is not participating in the exchanges) can try to restore order by sending a short request to all members to remain civil and request that they limit group-wide discussions. The board can also walk the members through using email filters to block all those sent by a particular sender.
For these same reasons, official Facebook-type pages and blog-type pages with comments enabled are a two-edged sword. While they facilitate communication, most states do not recognize electronic communication as official notice to members, unless certain waivers have been signed. So the advantages of this type of site to an association are limited. There are also questions of implied liability if actionable statements are made by the public on an association-sponsored site. For this reason, it is usually not wise for the association to adopt all of the latest and greatest means of online social communication.
Unfortunately, board members sometimes find themselves drawn into personal attacks and exchanges in a public medium. While painful, many of these communications are part of the democratic process. The remaining directors should exercise restraint and make sure that the association’s enforcement powers and funds are not being used to improperly silence a potential new candidate. In short, an association should not create uncontrolled environments that will facilitate rancorous discourse, and should recognize that it’s limited in what it can do out in the wilds of the internet.
Participation is also a great cure for conflict. If the board has a vocal critic, try inviting them to fill a director’s seat… it might change someone’s perspective. If you have two factions fighting for control of a board, try mixing it up so that compromises and conflict can occur within the Board itself and pursuant to its rules. Again, if you are ever unsure how to respond to a conflict, experienced legal counsel should be able to guide you. Good decision making and a few resolutions made in advance can avoid difficult and embarrassing situations growing to a point where the courts must get involved.