Penny Mudford mediation expert discusses retirement village dispute resolution

[caption id="attachment_6873" align="alignright" width="150"] Penny Mudford - Mediator[/caption]

We have an ageing population with the inevitable consequence: more and more people opting to live in retirement villages.

But when John and Mary sell up, down size and shift into their chosen village living “happily ever after” is not guaranteed.  Penny Mudford, dispute resolution expert (FAMINZ(Arb)) says previously unconsidered aspects of village living can often cause varying degrees of distress across a range of areas which in turn can profoundly affect a person’s emotional, mental and physical well being.

The chapter she contributed to the recently released book “Elder Law in New Zealand” steps through the process of what to do and how to handle a retirement village dispute.  She says the chapter is necessary for three reasons:

1. It consolidates the procedures required by law - The Retirement Villages Act 2003, The Retirement Dispute Regulations 2006 and, The Retirement Village Code of Practice 2008. Up until this book was published information was scattered across multiple sources making it particularly difficult for anyone to get a complete and correct overview of the protections and provisions provided by law.
2. It covers the typical range of disputes/complaints requiring intervention giving clear guidance for village operator and resident (with examples) on process.
3. It discusses frankly where, in Penny’s opinion, the “gaps” in our current practice are.

The current dispute resolution “gaps”

The procedures for deciding complaints are not well defined

Whereas property centered disputes (for example one centering on selling a residential unit) may be referred directly to the independent Disputes Panel provided under the legislation as a way of settling matters outside the formality of the regular court system, other complaints are generally handled “in house”.  That is the village operator is required to not only have a procedure for dealing with complaints but also a procedure for deciding complaints where complaints don’t get settled by agreement.

This, says Penny, is a “gap”. The procedures for deciding complaints are not well defined; neither is the complaint process, and consequently there is variation in practice across villages.

The surprises for residents

From observation Penny says most people don’t fully consider the implications of living in a village. They move in with expectations of a peaceful life and then are nonplussed when they find themselves in the centre of a conflict; often the direct consequence of high density living.

fixing a car in the driveway is probably on the off list

What was previously innocuous in the privacy of their former quarter acre paradise can be intolerable when it occurs on the equivalent of someone else’s front door step. For example, says Penny, many villages have specific rules banning the use of a front porch for hanging washing.  It’s offensive to some who think it makes a place look scruffy. Likewise fixing a car in the driveway is probably on the off list, and Tiddles, the cat may need to be fostered out before you shift in.

What happens when “gaps” and surprises collide

The current legislative requirements put both residents and operators in an ambiguous position: the operator because they may be both the complained about and the provider of the procedure to solve the complaint. The resident is often similarly conflicted through perhaps being seen as potentially “troublesome” by the village operators and a threat to business.

Neither position, says Penny, allows for fully independent intervention and resolution. In her opinion, this was an opportunity lost when the legislation was being drafted. She says a facilitative type of resolution process is fundamental to achieving good outcomes for everyone.

However, because providing an independent alternative to the procedural requirements set in law is discretionary rather than obligatory, access to facilitation or mediation services is not automatic.

That’s something that puzzles Penny as she says mediation processes are commonplace elsewhere. For instance they are extensively used in employment disagreements and for family disputes. The difference says Penny, is that in this area the onus is with the operator.  They may or may not use mediation as they wish.

She says the majority of village residents quite understandably, don’t know, what they don’t know.  If mediation is not offered to them, then they are unlikely to request it despite a panel of mediators being available.

Why mediation fits so well with retirement villages

For most complaints, other than those centered around property, (in which case these generally go straight to the formal Disputes Panel administered by the Retirement Commissioner), then Penny says mediation is by its nature a friendlier, more inclusive process.  It can for instance act a safety net, particularly in situations where people’s capacity and perhaps their behavior, is deteriorating over time.  More people can be involved, (family, close and extended), as well as trusted advisors – all of whom work together to achieve an outcome allowing a resident to live as independently as they can for as long as they can.  Solutions reached using mediation says Penny, are likely to be more sensitive, constructive and successful because they are reached through active participation in the process, rather than imposed.

Why it is important to adopt mediation where possible

Baby boomers accustomed to autonomous living will inevitably find the shift to high density living a bumpy ride.

We are going to see a sharp increase in both the number of retirement village disputes and complaints and their complexity arising purely from the increase of people living in them.  Baby boomers, she says, accustomed to autonomous living will inevitably find the shift to high density living a bumpy ride. The balance of individual freedom versus collective consensual limitation will be tested in ways that people never had to consider before. Villages have rules and regulations, she says. While they’re a good and necessary thing ensuring the smooth functioning of the entity as a whole for the benefit of all, it will take some adjusting to. For that reason, she says flexible and appropriate resolutions procedures are needed.

How to avoid disputes

Penny says that many of the conflicts arise through people being jettisoned into living in closer proximity to others than they ever did before.  Suddenly they find themselves having to meet and deal with people whom they would not in their previous life ever sought out to socialise or interact with. Consequently there will be differences of opinion and differences in standards of acceptable behavior.

Learning never stops

to thrive in a village meant having to keep an open mind and be ready to keep on learning

She says she learned from watching her elderly mother negotiating her way through the daily challenges to her peace of mind, that to thrive in a village meant having to keep an open mind and be ready to keep on learning.  She tells of her mother saying that she realized she would never know it all. There was always opportunity to grow – to learn.

Penny says for some people that ongoing learning is a shock. They came to a retirement village to rest – to do what they wanted to, when they wanted to – to be free of the responsibilities of owning their own property. The fact that they would have to work on and refine their interpersonal communication skills was never part of the original plan.  Penny likens it to having to complete a strenuous refresher course at a time when many are extremely reluctant to consider change.  She says the part of their lives when they were tested by children, work colleagues and perhaps peers, may have been a long time ago.  It’s quite likely a person may have lived very contentedly without challenge for twenty or more years before joining a retirement village community. That’s a long time of literally pleasing oneself!

And yet, to live harmoniously in a village a person must be ready to adapt – not only for the sake of themselves, but for the sake of the community at large. Penny says that while residents continue to live independently (within their own capacity to do so and the village rules) some of the independence they previously exercised is traded away.

The most common problems

Is this my garden or our garden? Can I plant pink petunias and decorate it with gnomes if I please?

In Penny’s experience the areas creating the most conflict are boundary breaches of varying forms.

These can be physical, for example a disagreement over what constitutes a common space and what is an individual space. Is this my garden or our garden? Can I plant pink petunias and decorate it with gnomes if I please?

Other common disagreements are about noise. If I’m deaf and want to listen to the racing results and don’t want to wear a hearing aid or head phones then I might turn the volume up. However my next door neighbor through the wall is not deaf and has loathed horse racing all her life. Now her space frequently reverberates to “they’re racing this time…”

These are ordinary every day examples and yet, if allowed to, can fester into out of control monsters with a life of their own making everybody unhappy.

Deal with it rather than avoid it

Penny’s advice is to deal with it rather than avoid it.  Avoidance for the sake of keeping the peace she says, often leads to a person’s sense of self being eroded which in turn can lead to a serious grievance accompanied by much anger and bitterness.

She says, to achieve a sense of balance and equilibrium for all, to remove the dispute out of the victim- persecutor dynamic, the only valid and  lasting way to solve a conflict is to offer both  parties genuine opportunities to involve themselves with coming up with a mutually amicable solution  - ie. mediation.

a rule seldom works

Imposing rules, she says doesn’t work in the long term, as a rule is an externally applied answer – a band aid over a sore spot. A rule doesn’t require self–reflection or ownership and inadvertently actually reinforces the winner-loser, victim-persecutor perception of behavior.

What does a mediator do

Rather than relying on the operator skills to achieve an equable and fair outcome to a dispute, a mediator offers multiple advantages to all parties.

An experienced competent mediator is:

• Independent – they do not have a vested interest in the outcome. They are neither solely there for the person bringing the complaint nor the operator.
• Free of prejudice – they do not have a history with either party which could colour how the dispute is handled and its outcome – This is particularly applicable to the operator who because of the way the current legislation was written runs a real risk as being identified as a “bad guy” in all areas if the situation escalates.
• Able to accommodate others, if the parties agree, to assist in the process of solving the problem
• Skilled - a highly trained professional - capable of setting up ongoing solutions to meet possible reoccurrences, changes of situation for example deterioration of someone’s behavior due to age related issues
• Aware of the legislation and rules covering both the resident’s and the operator’s rights

 For more information:

• Commission for Financial Capability – Retirement Villages
• Dispute Resolution in Retirement Villages - Chapter 15 – Elder Law in New Zealand

To contact Penny

Please visit:

• her profile page on Arbitrators and Mediators Institute of New Zealand
• or her personal website:  http://www.resolutionworld.co.nz/people