D. 
Alternative Dispute Resolution



 



§514B-161 
Mediation; condominium management dispute resolution; request for
hearing; hearing.  [The 2008 amendment is repealed on June 30, 2011.  L 2009, c 9, §2.] 
(a)  If a unit owner or
the board of directors requests mediation of a dispute involving the
interpretation or enforcement of the association's declaration, bylaws, or
house rules, or a matter involving part VI,
the other party in the dispute shall be required to participate in mediation. 
Each party shall be wholly responsible for its own costs of participating in
mediation, unless at the end of the
mediation process, both parties agree that one party shall pay all or a
specified portion of the mediation costs.  If a unit owner or the board of directors refuses to participate in
the mediation of a particular dispute, a court may take this refusal into
consideration when awarding expenses, costs, and attorneys' fees.



(b)  Nothing in subsection (a) shall be
interpreted to mandate the mediation of any dispute involving:



(1)  Actions
seeking equitable relief involving threatened property damage or the health or
safety of association members or any other person;



(2)  Actions to collect assessments;



(3)  Personal injury claims; or



(4)  Actions against an association, a board, or one
or more directors, officers, agents, employees, or other persons for amounts in
excess of $2,500 if insurance coverage under a policy of insurance procured by
the association or its board would be unavailable for defense or judgment because
mediation was pursued.



(c)  If any mediation under this section is not
completed within two months from commencement, no further mediation shall be
required unless agreed to by the parties.



(d)  If a
dispute is not resolved by mediation as provided in this section, including for
the reason that a unit owner or the board of directors refuses to participate
in the mediation of a particular dispute, any party to that proposed or
terminated mediation may file for arbitration no sooner than thirty days from
the termination date of the mediation; provided that the termination date shall
be deemed to be the earlier of:



(1)  The last date the parties all met in person with
the mediator;



(2)  The date that a unit owner or a board of
directors refuses in writing to mediate a particular dispute; or



(3)  Thirty days after a unit owner or a board of
directors receives a written or oral request to engage in mediation and
mediation does not occur within fifty-one days after the date of the request.



(e)  If a
dispute is not resolved by mediation as provided in subsection (a), including
for the reason that a unit owner or the board of directors refuses to
participate in the mediation of a particular dispute, any party to that
proposed or terminated mediation may file a request for a hearing with the
office of administrative hearings of the department of commerce and consumer
affairs, as follows:



(1)  The party requesting the hearing shall be a board
of directors of a duly registered association or a unit owner that is a member
of a duly registered association pursuant to section 514B-103;



(2)  The request for hearing shall be filed within
thirty days from the termination date as specified in writing by the mediator;
provided that the termination date shall be deemed to be the earlier of:



(A)  The last date the parties all met in
person with the mediator;



(B)  The date that a unit owner or a board of
directors refuses in writing to mediate a particular dispute; or



(C)  Thirty days after a unit owner or a board
of directors receives a written or oral request to engage in mediation and
mediation does not occur within fifty-one days after the date of the request;



(3)  The request for hearing shall name one or more
parties in the proposed or terminated mediation as an adverse party and
identify the statutory provisions in dispute; and



(4)  The subject matter of the hearing before the
hearings officer may include any matter that was the subject of the mediation
pursuant to subsection (a); provided that if mediation does not first occur,
the subject matter hearings officer shall include any matter that was
identified in the request for mediation.



(f)  For
purposes of this section, the office of administrative hearings of the
department of commerce and consumer affairs shall accept no more than thirty
requests for hearing per fiscal year under this section.



(g)  The
party requesting the hearing shall pay a filing fee of $25 to the department of
commerce and consumer affairs, and the failure to do so shall result in the
request for hearing being rejected for filing.  All other parties shall file a
response, accompanied by a filing fee of $25, with the department of commerce
and consumer affairs within twenty days of being served with the request for
hearing.



(h)  The
hearings officers appointed by the director of commerce and consumer affairs
pursuant to section 26-9(f) shall have jurisdiction to review any request for
hearing filed under subsection (e).  The hearings officers shall have the power
to issue subpoenas, administer oaths, hear testimony, find facts, make
conclusions of law, and issue written decisions that shall be final and
conclusive, unless a party adversely affected by the decision files an appeal
in the circuit court under section 91-14.



(i)  The
department of commerce and consumer affairs' rules of practice and procedure
shall govern all proceedings brought under subsection (e).  The burden of
proof, including the burden of producing the evidence and the burden of
persuasion, shall be upon the party initiating the proceeding.  Proof of a
matter shall be by a preponderance of the evidence.



(j) 
Hearings to review and make determinations upon any requests for hearings filed
under subsection (e) shall commence within sixty days following the receipt of
the request for hearing.  The hearings officer shall issue written findings of
fact, conclusions of law, and an order as expeditiously as practicable after
the hearing has been concluded.



(k)  Each
party to the hearing shall bear the party's own costs, including attorney's
fees, unless otherwise ordered by the hearings officer.



(l)  Any
party to a proceeding brought under subsection (e) who is aggrieved by a final
decision of a hearings officer may apply for judicial review of that decision
pursuant to section 91-14; provided that any party seeking judicial review
pursuant to section 91-14 shall be responsible for the costs of preparing the
record on appeal, including the cost of preparing the transcript of the
hearing.



(m)  The
department of commerce and consumer affairs may adopt rules and forms, pursuant
to chapter 91, to effectuate the purpose of this section and to implement its
provisions. [L 2004, c 164, pt of §2; am L 2007, c 244, §7; am L 2008, c
205, §§2, 5]