“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser – in fees, expenses, and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be business enough.”
— Roy P. Basler, The Collected Works of Abraham Lincoln, 1953.
Independence
The independence of organizational ombudsmen allows them to operate outside the politics of the organization. This is particularly critical for organizations such as HOAs. The key role of the HOA ombudsman is to serve as an informal trusted resource that can assist with dispute resolution through various means, such as shuttle diplomacy and informal mediation.
Impartiality
As a designated neutral, the ombudsman officially does not represent any party in a dispute. The ombudsman serves to provide unbiased feedback, honest evaluation, and the unfettered ability to listen objectively.
Informality
Informality allows parties to remain actively in control of both the process and the decision making about outcomes. In contrast to formal channels, an ombudsman does not provide legal advice, accept legal notice of claims, issue conclusive reports, make determinative findings, or arbitrate decisions.
Confidentiality
In the same vein, confidentiality allows ombudsmen to understand issues in greater detail and explore solutions that will likely be longer lasting and more effective. Without the protection of confidentiality, homeowners and HOA board members would be reluctant to fully share personal conflicts, ethical concerns, business practices, or legal issues.
Ombudsmen can do the following: • Conduct conflict resolution training and coaching • Proactively address conflicts • Listen to all of the parties’ concerns or complaints
• Conduct an informal investigation of the issues
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• Provide information and suggestions to the parties from the perspective of an unbiased and impartial neutral
• Brainstorm possibilities with all parties to the dispute, suggesting creative solutions
• Informally mediate the conflict, directly or through shuttle diplomacy
The ombudsman does not stand in the shoes of the members, the HOA board, or even the community manager, and since Civil Code §5905 requires the use of impartial third-party neutrals, it would be essential to retain the services of an external ombudsman as an independent contractor from outside the HOA. Although an ombudsman would become familiar with the community and the governing documents and consult regarding any HOA issues, ombudsmen do not provide legal advice, accept legal notice of claims, make conclusive reports, make determinative findings, arbitrate decisions, determine policy, or testify in formal or administrative proceedings.
These invaluable services can help parties avoid years of litigation and hundreds of thousands of dollars in expenses, without compromising the important formal advisory or compliance roles of HOA boards, community managers, and attorneys. An example of cost savings for an organizational ombudsman is documented in an article published by the Journal of the International Ombudsman Association: (https://
ioa.memberclicks.net/assets/docs/2010_Journal_of_the_ International_Ombudsman_Association.pdf, pages 40-42)
Wouldn’t it be better to create a harmonious community by avoiding litigation and utilizing HOA assessments for their intended purpose – maintaining the community for the benefit of all its members?
– Jonathan Cayton, Esq., is a partner at Cayton Cavallaro, PC, and an Adjunct Professor at Chapman School of Law. He can be reached at
jon@crimlawoc.com or 949.287.8735
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