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Dec 1, 2012|Article

What Happens After the Mediation Ends?

A condominium mediation ends in one of two ways: 1) the dispute is resolved, or 2) a notice of failed mediation is prepared by the mediator. In the former, the parties finalize their dispute with terms of settlement. In the latter, the parties submit their dispute to arbitration for a final resolution. Regardless of the outcome, the board often has a number of questions about the next steps. Below are short answers to the most common questions that arise after mediation.

“We’ve reached a settlement. What’s the next step?”

Since it is fairly rare for the full board to attend mediation any settlement reached at mediation is usually subject to ratification by the board at the next board meeting. Assuming for a moment that it is ratified by the board, the next step is usually to draft formal minutes of settlement to be executed by all of the parties. The minutes of settlement are then binding on the parties. If one of the parties fails to comply with the minutes of the settlement, the other party can apply to the courts to have the minutes of settlement enforced.

“We’ve reached a settlement, but we don’t like it. Can we get out of it?”

The answer is normally no, but there are a few exceptions. For instance, if the parties realize after mediation that the settlement did not address an issue, they can negotiate an amendment to the minutes of settlement or enter into separate minutes of settlement to address the issue that was left out of the minutes of settlement. However, the condominium’s board should be careful to ensure it satisfies all of the terms of the settlement as the directors could be held personally liable for any costs incurred by the owner in enforcing the minutes of settlement if they fail to satisfy the terms of the settlement. 1 The board should seek the advice of the condominium’s lawyer to determine if they can avoid the settlement or modify it.

“What’s arbitration?”

Arbitration is a dispute resolution process whereby a neutral third party assists the parties in resolving their dispute. Generally the parties are afforded an opportunity to present evidence and to make submissions on the law. The arbitrator, unlike a mediator, will then render a decision. The decision, called an “award”, is binding on the parties and is enforceable in the same manner as a court order. Unlike condominium mediations, which have no defined process unless they are set out in a condominium’s by-laws, arbitrations in Ontario must be conducted according to the Arbitration Act, 1991. 2 That said, the parties may agree to opt out of many of its provisions so the arbitration process remains fairly flexible. The arbitration process for condominium disputes usually varies depending upon the nature of the dispute, the arbitrator, the parties, and the condominium’s arbitration by-law (if one exists).

1 Boily v. Carleton Condominium Corporation No. 145, [2012] ONSC 1324 (S.C.J.).
2 Arbitration Act, 1991, S.O. 1991, c.17.1) 

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