Resolving Sectional Title Disputes Through Negotiation

Resolving Sectional Title Disputes Through Negotiation

Posted on March 10th, 2010 Huis-Huis 1 comment

Reaching accross the devide

When a dispute arises between individual owners of units and a body corporate in a sectional title scheme, the first important step towards resolving the dispute should be negotiation. Or so say the experts.

It sounds so nice, polite and sterile when one thinks of sectional title problems as “declared disputes”. But, in reality, there usually is at least one party that is thoroughly pissed at the other by the time anyone starts thinking of negotiating to resolve a sectional title dispute.

Why would pissed off people negotiate? What is this negotiation thing and how does it work exactly? All valid questions that we’ll discuss here.

Why negotiate to resolve sectional title disputes?

Sectional title schemes are social housing arrangements. All section owners are members of the body corporate for as long as they own their sections. So, like it or not, you’re probably going to be stuck having to deal with those folks you have a dispute with for a while. It would therefore be wise to resolve your differences amicably if at all possible, wouldn’t it?

There are plenty of reasons to negotiate. Here are the ones I can think of:

• Sectional title disputes can be nasty things. And getting back from “nasty” to “nice”, after a third party decided who wins and who loses, is a very hard thing to do. Disputes that can’t be resolved through negotiations are more likely to lead to lingering animosity between the parties. Resolving disputes through negotiations, rather than the more formal dispute resolution options, make it easier for sectional title residents to ramain good neighbours.
• Negotiations provide everyone the opportunity to “win”. There are no losers in successful dispute negotiations. All the parties can come away from the negotiating table with dignity and a feeling of fairness, even though they didn’t quite get everything they wanted.
• Negotiating is “easy“. All you need to negotiate a resolution to a dispute is the will to resolve the dispute without resorting to the more formal dispute resolution options.
• Negotiations can be conducted in private. And the negotiated agreement can be kept confidential. Confidentiality allows the parties to agree to consessions they might not have considered if the negotiations were public. It might just be a matter of “upholding reputation” or “saving face” that allows parties to come to an agreement.
• Negotiating is “fast“. You don’t have to wait for a court date or the availability of an arbitrator to negotiate a solution to a dispute.
• Negotiating is cheap. All the other dispute resolution options are more expensive than direct negotiations between the parties.
• The parties to the dispute control the negotiations. In more formal dispute resolution options, the parties forfeit their control over the outcome of the dispute resolution to a third party.

What is dispute resolution through negotiation?

Negotiating to resolve a sectional title dispute simply means the disputing parties sit down and talk about a solution that would be to everyone’s advantage.

The parties each have a position that serve their own interests, and the dispute arises because they argue from those opposing positions. Negotiating is not about arguing positions. By this time the parties know they don’t agree whose position is correct. Arguing some more about that is not gonna solve a thing.

During negotiations the parties must check their positions at the door and focus on the interests behind the positions they hold. The “interests” we’re talking about are the needs, wants and concerns the parties have. Some of the interests may very well prove to be shared between all the parties involved in the dispute. But you’d never know until they sit down and talk.

Finding a solution that addresses all the concerns and gives everyone at least some of what they want and/or need is how disputes get resolved through negotiation.

Negotiating a resolution is about finding a way to satisfy everyones needs to some extent. Everyone must be willing to “give” something the other side needs, just as everyone will be expecting to “get” something from the other side, in order to arrive at an agreement where everyone’s needs are sufficiently met to resolve the dispute.

In a negotiated resolution everybody wins. Or rather, nobody loses. A negotiated resolution is impossible if one side feels that they are on the losing side. The idea is to get to that solution that says “win-win” to everyone.

Sounds easy enough, doesn’t it? Yeah, well, it isn’t quite that easy.

The problem with negotiating to resolve sectional title disputes

If any of the parties to a dispute don’t want to cooperate to find a negotiated solution, negotiations can’t take place.

The agreement reached through negotiation is only binding on the parties once they take steps to make it binding. The agreement will usually be reduced to writing and submitted to the parties for their signitures. If one of the parties refuse to sign, the negotiated agreement cannot be enforced. (And no. Getting the parties to sign an agreement at the beginning of the negotiations, to sign the written agreement later, is “an agreement to agree”, which isn’t binding either.)

Are there rules to negotiated resolutions to sectional title disputes?

There aren’t any written, binding rules for sectional title dispute negotiations. The following “rules” are just common sense measures to make negotiations easier and more fruitful. The parties to the negotiations can decide on any rules before the negotiations (and it’s always best to get those rules down in writing).

The negotiations should provide time for each of the parties to discuss their interests (concerns, needs, wants) in the dispute. After this discussion, the parties must have the opportunity to propose, assess, discuss, accept or reject solutions to resolve the dispute.

Even though there aren’t any binding rules, keep these six negotiation commandments in mind:

1. Thou shalt not negotiate angry. Separate the anger from the issues. Leave the anger behind for a while and try to see the other side of the dispute. You can always be angry again later, should the negotiations fail.
2. Thou shalt not negotiate unprepared. There’s homework to do before the negotiations. Do it.
3. Thou shalt not make things personal. Separate the person from the problem. Deal with the problem (the behaviour and consequences) directly without attacking the person. Refer to the impact a person’s behaviour has on you, rather than referring to the impact you believe the person intended the behaviour to have.
4. Thou shalt not stop listening. Hear the other side. Don’t interrupt. Understand what they are saying. Repeat what you hear in your own words to confirm that your understanding is correct.
5. Thou shalt speak clearly. Convey your points as clearly as you can. It is your responsibility to make the other parties understand exactly what you mean. Clear up any misunderstandings right away.
6. Thou shalt not stop looking for a solution. If you have a proposal you think might solve the problem, lay it on the table. And assess all tabled proposals on how well it serves everyone’s interests, rather than on who proposed it.

Preparing for sectional title dispute negotiations

Negotiating to resolve a sectional title dispute is so much easier if all the parties are prepared.

Once you decide to try and resolve your dispute through negotiation, sit down and discuss a place, date and time for the negotiations. Decide who can attend, how the negotiations will be conducted, how much time will be available, etc. (Put these details in writing, to prevent confusion and misunderstandings) Also explain what you’re going to do to prepare yourself for the negotiations and ask the other parties to do the same.

And here’s what you’re going to do to prepare:

Think about the situation clearly. You need to know the answers to some very important questions:

From your perspective, what is the absolute worst thing that could happen if an arbitrator or judge resolves the dispute in the other party’s favour? And what is the best you could expect, should the dispute be resolved in your favour?

What do you need and/or want? What are you concerned about? List your concerns, needs and wants in order of importance to get a clear picture of where you stand. This is a list of your interests. It is important. Keep it handy during the negotiations.

From the other party’s perspective, what is the absolute worst thing that could happen if an arbitrator or judge resolves the dispute in your favour? And what is the best they could expect, should the dispute be resolved in their favour?

What do the other party need and/or want, in your opinion? What might they be concerned about? List what you think are their concerns, needs and wants in order of importance to get a clear picture of where you think they stand. This is not a list of the other party’s interests. It is merely your initial understanding of their interests. (Don’t take it into the negotiations. It is just a tool you need to come up with possible solutions to the dispute. Rather make a new list during the negotiations. It will show that you’re willing to listen and understand their point of view.)

And once you’ve answered these questions, can you come up with any solutions that satisfy all the listed interests? Probably not. Can you come up with any solutions that satisfy some of the listed interests? Think up as many solutions as possible. List them in order of desirability, from your perspective, of course.

Once your head hurts, your writing hand cramps and your eyes burn, you’re probably prepared to start negotiating.

Concluding sectional title dispute negotiations

The whole point of the negotiations is to come to a conclusion. Negotiations cannot continue into eternity. That is why you agreed on a time allocation before starting negotiations, after all.

When the time set aside for the negotiations is over, the parties to the negotiations have to be make a decision. They can choose to accept one of the tabled proposals as a resolution to the dispute, or to reject all the tabled proposals.

Accepting a proposal

If the negotiations lead to an agreement that is acceptable to all the parties, the agreement must be put in writing and the parties must indicate their agreement by signing the written agreement. It is best to make copies of the agreement for each party before signature and have all the parties sign each copy. That way, everyone leaves the negotiation table with an original copy.

But be careful now! The agreement cannot be conditional, because conditional agreements are not binding and enforcable until those conditions have been met. If, for example, one of the parties need the approval of someone else before they can commit to a final agreement, rather adjourn the negotiations until a time in the future when it can be reasonably expected that the condition be met.

The negotiations are not successful until all the parties commit to a final agreement.

Rejecting all proposals

If the parties choose to reject the tabled proposals, it does not neccessarily mean that the negotiations have failed. The parties can still choose to commit to another round of negotiations. This is what might happen when the parties feel that they have moved closer to a solution but that the allocated time was just too little.

The negotiations have failed if the parties reject all the tabled proposals and refuse to negotiate any further, or indicate their intentions to persue one of the other available dispute resolution options.