by Patty MacDonald, September 20, 2019
Mediation vs Arbitration – the difference
I am writing as a Villager who has dealt with a situation similar to the one that Ms. Nalley has forced upon two POA Board members, Diana Podawiltz and Dick Garrison. As one of the plaintiffs in Barker v Frank, an Amendment 59 property tax case, I may be able to shed light on this issue. The circumstances have similarities, but also differences. I am not an attorney, but I studied at CHK [the College of Hard Knocks].
After protracted jurisdictional disputes and 13 years of pleadings and delays, both sides were exhausted and needed resolution. We decided to ask for mediation, which took place in 2007, settling the case. The significant difference in our situations is that the outcome of mediation is not legally binding, while the Nalley/HSVPOA Contract* ties dissenters to “arbitration.” This is a more onerous legal proceeding in which the verdict can be entered in a court of law. Mediation is collegial, while arbitration (preferred by unions) is adversarial.
The mediator in our case was a respected retired Arkansas judge, not an attorney whose specialty is reported to be medical malpractice and school law. Our mediation was held in Little Rock in a large law office that was empty over the week-end. The interests of every stakeholder (such as bondholders) were represented by their attorneys, present but not at the tables. The energetic and knowledgeable judge had great empathy for both sides in our case. It was a fair resolution. If reports are accurate, Diana and Dick’s treatment smacks of retribution and intimidation.
*Lesley Nalley’s employment contract with HSVPOA states: “Any controversy, dispute or disagreement…shall be settled by arbitration, which shall be conducted in Central Arkansas and judgment on the award rendered by the arbitrator may be entered in any court have[sic.] jurisdiction thereof.” Section 4, paragraph 10 of Nalley/HSVPOA contract, dated 3/19/2019. (Emphasis added)
by Patty MacDonald, September 20, 2019
John Dethardt
09/20/2019 — 5:30 pm
Totally out of control, the village needs to settle thing like that in house. If that’s not happening we need a new general manager who can work with all. A lot of the villagers will be upset if the ceo contract is extended. God help us.
Melinda
09/20/2019 — 5:41 pm
Never heard of Amendment 59 so I googled it. Holy cow what a mess that was. Can hardly imagine how it every was unwound or if it truly has been. Yes, meditation is non- binding but sometimes it just takes a neutral third party to help litigants resolve their issues.
Minn Daly
09/20/2019 — 5:44 pm
Ms McDonald, you are so correct in your analysis on Dick Garrison & Diana P. Arbitration. Dick Garrison has an excellent case to be decided. It is the rights of HSV board members to expect the General Manager/CEO to report to them rather than have the General Manager/CEO tell the board member what to do. Amazed that legacy BOD gave current CEO that much power. Changed the bylaws so many times for protection from Newly elected BOD members who could ask questions, request information & state the word NO to our current CEO. Dick Garrison should be reinstated immediately. I have no doubt that Dick Garrison deserves a full restitution of his name, character & I believe the court will agree, BOD owes a resounding apology, Respectfully, Minn Daly
Vested interest
09/22/2019 — 8:14 pm
In my opinion, the BOD can NOT abdicate it’s authority.
Therefor, the other board members are responsible for Dick Garrison’s removal as a member. Likewise, any interference of a board member toward the decision, or action of any department manager is legitimate given their board member authority.
Anonymous
09/20/2019 — 6:44 pm
What I found very confusing about this whole issue was the statement that was issued at our last board meeting that indicated there was no arbitrator and that we had not hired anyone. Third-party accounts of those present indicates that there was a resource hired and unless the CEO is paying that out of her own pocket, that expense is borne by the property owners. So exactly what is and has been going on? Is there a process/procedure that outlines this action? Or is it simply the paragraph in an employment contract that cannot be viewed as anything other than manipulation and intimidation? This has been tagged as a personnel matter, however, the board is not composed of employees but rather as a body of employers of the CEO. And all along we were thinking it was the money she didn’t want us to see.
Anonymous
09/21/2019 — 8:12 am
Now we understand her statement to Mr. Garrison at that board meeting when her words were “Mr. Garrison You are unaware of what is in my contract as to how it relates to how I am to execute my job”.
Kirk Denger
09/21/2019 — 9:08 pm
Anonymous09/21/2019 — 8:12 am, You remembered that meeting when it was apparent that the ceo’s feathers were ruffled! The fact is that the ceo should not be on the Board at all and should keep her mouth shut unless asked for. This situation was created by the last few Twiggs/Nalley bobble head Boards easily influenced by card-carrying communists of new urbanism DPZ strategy.
Elizabeth Bradford
09/23/2019 — 11:26 am
Couldn’t have been better said.!!!
Julie
09/21/2019 — 5:59 am
Nothing is as it seems with this lawless bunch. I trust them not. Not one whit. We are thinking of bailing out of this place. It seems like the problems are insurmountable. How many more years of ineptitude can HSV take without permanent damage? Is it perhaps already too late?
These are my thoughts.
I wish it were not so,
But I have made plans to go.
Will surely lose a lot of dough,
As property values are heading low.
Malfeasance abounds,
No care given to our grounds.
A pool here – a remake there,
But no one gives a care.
Our infrastructure bleeds,
While our board does deeds.
That are at best
True and wanton neglect.
So much is so very wrong,
I doubt if it will take long.
For the chickens to come home to roost,
And finally cook our collective goose.
Anonymous
09/21/2019 — 8:00 am
Love your thoughts. Well said.
No legal eagle
09/21/2019 — 7:55 am
What seems to be overlooked is that item 10 of her contract says “relating to this Agreement”. The contract does not talk about her job per se, but of her pay, benefits, termination, etc. The grievance was not about her contract, so does any of this really apply? Just asking.
10. Any controversy, dispute or disagreement arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration, which shall be conducted in Central Arkansas, and judgment on the award rendered by the arbitrator may be entered in any court have jurisdiction thereof.
Kirk Denger
09/21/2019 — 9:22 pm
No legal eagle09/21/2019 — 7:55 am,
Better than any legal advice we have gotten to date. Thanks, Legal Eagle! KEEP ASKING! Share your thoughts if you have time, Mondays at the DeSoto Club at 5:30pm. Members, not hoarding solutions, meet to share possibilities.
Melinda Noble
09/21/2019 — 8:19 am
Anyone can be fired with cause and that includes Lesley.
Kirk Denger
09/21/2019 — 9:10 pm
Anyone can be fired without cause including ceo.
steve bylow
09/21/2019 — 10:55 am
Thanks for the great article!!!
I agree with a previous post that the use of mediation or arbitration tends to be focused on items related to the actual employment contract. For the CEO to use the clause for any other employment matter was a huge mistake. It not only made us Villagers aware of her decision-making but will give any prospective employer the impression she has trouble with managing conflict, situational awareness, and judgment.
I’m confident that 2020 will bring in new Board members who will develop and oversee an organization structure and governance which is transparent and practical.
NittyGritty
09/21/2019 — 1:09 pm
Because of our incessant complainers, Hot Springs Village will be living with a pool HALF the size of what was originally budgeted until we are all dead & gone! We COULD’VE had pachysandra-lined pathways to a HUGE crescent shaped pool with the pump BEHIND chairs that were spread out 180 degrees within the semi-circle, looking out over the pool and the fairways. NOW we have fake, astro-turf pathways to a dinky L shape pool with a straight line of shaded chairs blocking the view of the fairway and looking at the privacy fence around the pump. Way to go, complainers? Maybe if 1500 complainers would each pay $1000 to reserve a burial plot where the pool is now, we could turn it into a cemetery to commemorate them, and build the nicer pool somewhere else!
Judy Weatherly
09/22/2019 — 9:45 pm
We aren’t complaining….we are tired of money being spent that’s not there plus we have infrastructure needs that surpass any million + pool. Am all for new amenities IF WE CAN AFFORD IT!
The Villages sewer/water lines getting old..breaking down plus roads in many areas need repaving. That is why a lot of us were unhappy about pool instead of REAL needs that benefit everyone’s home plus safety on roads.
Oh… By the way welcome to the group of complainers!
NittyGritty
09/24/2019 — 11:58 pm
According to Revenues & Expenses (but NOT depreciating cash!), 2010-2018 were altogether Net positive by $37 million.
Gene Garner
09/21/2019 — 3:06 pm
Great article Patty, well researched and explained- where even I understand. Arbitration is favored in most states because it keeps a large number of complaints out of the courts and Arkansas has a series of statutes called “The Arkansas Uniform Arbitration Act” (ACA 16-108-201 to 224) to do just that.
ACA 16-108-201 (a) states there has to be a written agreement between the parties to be valid.
ACA 16-108-201 (b) states this subsection shall have no application to employer-employee disputes.
In other words, there has to be a written agreement, between the parties, to submit the controversy to arbitration and arbitration does not apply to employer-employee disputes.
If one side refuses to arbitrate, the complaint could go to court, but it would depend on the two requirements above to proceed
The “arbitration procedure” concocted by the BOD on the CEO”s complaint has no legal justification according to AR law since the CEO is an employee of the Board of Directors.
Of course I’m not an attorney and this is just my opinion.—Gene
Jim P
09/21/2019 — 4:30 pm
Is this rumor or fact? Where can we find the source of this information?
Minn Daly
09/21/2019 — 5:56 pm
Gene! Is HSV/CEO the employer? According to the contract I have seen she is the employee, to be directed & report to BOD! Or has the bylaws changed again or did all Legacy BOD sign off on contract giving CEO total control as employer? It seems every other meeting our bylaws change, hard to keep up! Need your excellent advice on this! Thanks, Minn Daly
Tom Blakeman
09/21/2019 — 6:35 pm
Most arbitration clauses are implemented by corporations and/or bought into or allowed by by the uninformed because it is perceived as more expeditious and less costly than lawsuits. Most implementers of or those desirous of arbitration (typically but not always corporations) are those who have larger pocketbooks and can afford the lawyers needed to ensure that their interests win the arbitration. Or they are smarter than those with whom they may end up in arbitration against. Again, this is mostly large corporations versus their public consumers. They fear that going to court might result in either a judge or jury that might be swayed against them by smart talking legal beagles.
In our case it would appear that someone who wanted our CEO to have an upper hand in potential legal disputes with HSVPOA dreamed up this arbitration idea and had it put into to her contract. The naive board members at the time went along with it. Pretty smart really. Costs the CEO nothing and we pay the bill. Particularly smart given that, as Mr Garner states, AR law does not even recognize arbitration for employer employee issues.
My opinion only. I’m not a lawyer.
Anonymous
09/22/2019 — 12:15 pm
She is not this smart. Or Tom Weiss is this dumb.
Or they or all CNU crooks.
Gene Garner
09/22/2019 — 8:51 am
Minn, as I wrote, the CEO is the employee (the only employee) of the Board and the Board is the employer. This is in accordance with our Bylaws, Article XI Section 6. –Gene
Minn Daly
09/22/2019 — 9:37 am
Gene, thank you! This is why Dick Garrison has an excellent case! Minn
Anonymous
09/22/2019 — 6:11 pm
A case for what?
Dick is not going to pursue this according to those who know him.
Hopefully he will run again.
Julie
09/23/2019 — 8:36 am
Apparently you are not one of them.
Carol Fields
09/23/2019 — 8:01 am
Dick is meeting with attorneys this week.
Elizabeth Bradford
09/23/2019 — 12:23 pm
Couldn’t have been better said.!!!
Minn Daly
09/23/2019 — 9:26 am
To anonymous: It is obviously apparent that you have your point of view. Those of HSV members who support Dick Garrison seek all ways possible for him to dethrone the SWAMP! Dick Garrison did not deserve what happened to him. Clear that legacy BOD overstepped laws that need to be rectified. Dick Garrison is in the process of accomplishing this so it can’t happen again because of naive BOD members, takeing it on themselves to protect a General Manager/CEO. As stated General Manager/CEO is an employee!. We will continue our support of Mr. Garrison, on this issue! Minn Daly