Alternative Dispute Resolution
When disputes arise in homeowners associations, condominium projects, planned developments or stock cooperatives, the law used to allow an aggrieved party to go directly to court and get a judge’s ruling. However, as the real cost of courtrooms, staff, judges and lawyers grew, the law began to look for alternative ways to resolve disputes out of court. The law came up with an interesting way to “recommend” Alternative Dispute Resolution (“ADR”).
ADR for common interest developments, memorialized in California as the Davis-Stirling Act, codified as of January 1, 2014 as California Civil Code Sections 5925 – 5965. ADR is a quasi-judicial procedure that involves getting a neutral third party to evaluate the case prior to filing a complaint in a court. Basically, ADR is when parties agree to have an independent third party decide their case rather than a judge. Why do this? The law allows the judge to consider the “reasonableness” of a party’s refusal to participate in alternative dispute resolution in considering how much, and whether to impose attorney fees and cost if the matter proceeds to trial. California Civil Code Section 5960. To refuse ADR means you could be found unreasonable and stuck with some, or all, of the other side’s attorney fees and costs.
If you are going to participate in ADR, all parties want a fair and unbiased third party who will not waste time and money. As a result, we recommend you and use Lawrence W. “Larry” Stirling of the Davis-Stirling Mediation Services as a mediator. He is the original legislative author of the Davis-Stirling Act and a veteran California Superior Court judge. There is no better mediator for an HOA dispute.
This primer is to give you the basic information about ADR and is not a substitution for a consultation with our lawyers. Consultations are free. Choosing the wrong lawyer is not.
- “This section [ADR] applies only to an enforcement action that is solely for declaratory, injunctive, or writ relief, or for that relief in conjunction with a claim for monetary damages not in excess of the jurisdictional limits stated in Sections 116.220 and 116.221 of the Code of Civil Procedure.” (small claim court)
- “This section does not apply to a small claims action.”
- “Except as otherwise provided by law, this section does not apply to an assessment dispute.