Cohousing-L Mailing List: Beyond Mediation (long)

[Lynn Nadeau (welcome]

Much has been discussed on this list about how to keep members calm and 
in communication with each other, facilitation, outreach, Third Meetings, 
Clarity Committees, and various forms of mediation, including going 
outside the group for professional mediation. 

But sometimes that's not enough. Sometimes a member can lose touch with 
their reason to feel PART of a group, and start seeing the group as 
"other" and become seriously antagonistic. 
We had this happen a year ago.

We are now in the process of doing a total overhaul of our 10-year-old 
Bylaws, Covenants, etc, to update them to current reality, and clarify 
matters which have turned out to be open to various interpretations. I am 
seeking advice from other groups about how you have designed the 
legalities of dispute resolution, in your legal documents. 

Our original material says disputes should be approached first by 
discussion, then mediation, then if mediation fails, can go to 
arbitration; when outside professional services are agreed to be used, 
costs are to be split. When we wrote this, it seemed unlikely that we 
would ever need it. Now we know that it CAN happen, and that what we had 
in our documents did not avert a very difficult situation. We are looking 
at what our options are, in terms of our Bylaws, especially for insights 
which could avoid a replay of the mess we found ourselves in last year. 

In short, what is prescribed in your legal documents when a member has a 
dispute with the rest of the organization, and mediation is not 
successful?

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For those with an active interest in this topic, I'll elaborate. 

In searching the archives, I found one post with an apparently unique 
approach: "in New View (Acton MA) we have added some protection by 
requiring in our bylaws that WHILE PEOPLE ARE MEMBERS, disputes cannot be 
settled by court cases, but instead have a last resort of mediation & 
arbitration. This doesn't protect against former members, but it does 
provide a more comfortable last resort for disputes between members. The 
clause also applies to the 
corporation itself, in its dealings with members." Can one in fact give 
up one's right to sue? As for arbitration, who pays? Is the cohousing 
group liable for the expense of any arbitration a member wants to drag it 
into? Can the group refuse to go to arbitration? (If the corporation 
can't sue a member, does this preclude legal action to collect 
assessments from a member/estate/ bank that owns a lot and isn't paying 
their assessments?) 

Here's what happened in our group, so you see what I mean by our system 
not having worked for us. 

Family X participates successfully for years, builds their expensive 
dream house here, leaves the town they lived in for decades and moves 
here. Continues to participate, in committees, business meetings, 
socials. In discussion, X often takes a contentious stand, enjoys debate, 
urges different viewpoints, sometimes gets agreement, sometimes not, but 
participates in consensus decisions never blocking. Has been friends with 
some of the other member families for 20 years, long before this project, 
where they used to live. 

Suddenly X declares that he is in dispute with the group. Despite minutes 
and other evidence to the contrary, maintains that we had needed a new 
consensus on proceeding with building our common house. All sorts of 
mediation attempts, including an offer to revisit the decision, even as 
we are proceeding with construction, are met with refusal to be satisfied 
or appeased. 

The "solutions" X proposes don't make sense to any of the rest of us (20 
households). Like "withdrawing" their house and lot from the cohousing 
project (in spite of it being right in the physical community, and having 
documents on the deed that say that this lot IS part of the community). 
Like being refunded the ten thousand dollars of their buy-in which 
represented a share of the common house. 

To everyone else's horror, X starts to refer to suing us. Add to this 
that X is a lawyer who has successfully (and proudly) sued others in his 
past. Much upset, many valiant, and capable, attempts at clarifying the 
history, seeking compromises, meeting with X to discuss and mediate. For 
nought. X continues to feel, and act, the misunderstood victim. 

We had always assumed that either a person would feel PART of the 
community, and feel a need to work out conflicts, or if they did not feel 
part of it, they would leave. We weren't prepared for someone who refused 
to leave, and refused to participate as an equal member, but who 
envisioned cutting themselves off, but staying. 

A Task Force met with X and hammered out a Compromise which neither party 
liked, but which x was willing to agree to. It included X not paying 
assessments for two years. This was a financial burden on the other 
individuals in the group. Since many were adamant that they had done 
nothing wrong, this was not a welcome solution. But at that point, the 
Task Force put it to the group at a business meeting in purely pragmatic 
terms:

This is the amount of time and money we estimate are involved in taking 
this to Arbitration. 
This is the amount of time and money we estimate are involved if there is 
a lawsuit. 
This is the amount .....if we accept the proposed compromise. 
"How much time, how much money (on a secret ballot) are you personally 
willing and able to give to each of these solutions?"
The results were very clear: almost everyone was exhausted from this, 
annoyed-to-outraged with X, had other things to attend to, and didn't 
have time and energy to continue dealing with it. In addition, X imposed 
a deadline (almost immediately), at which time legal action would be 
resorted to if a successful conclusion had not been reached. 

We also had to consider what it would do to our reputation in town and 
farther afield if one of our members sued the group, or even forced 
arbitration.

So we agreed to the compromise. Nobody felt good about it, including X. 
But it put out the fire. For the time being. The group has moved on to 
building our wonderful common house and other normal community business. 
But this business consumed a lot of time and psychic energy we would have 
rather used positively.

The question of the day, is how can one best protect the time and money 
of the group from arbitration or lawsuits which only the disputing party 
thinks are necessary?

Lynn Nadeau
RoseWind Cohousing
(where we are enjoying salmon barbeques, each other's company, painting 
the CH interior, harvesting onions and tomatoes, and 65 degree weather)