Frequently Asked Questions
What Is Mediation?
Mediation is a process in which a neutral person, known as the mediator, helps parties reach a settlement to their dispute by opening lines of communication, objectively evaluating the case, identifying parties’ real needs and finding a solution to address those needs. The mediator does not have the authority to make a binding decision, unlike the arbitration process, in which the arbitrator renders a decision that is final and binding.
Who are the Mediators?
The Real Estate Mediation Center uses mediators who practice specifically in the real estate field.
How is Mediation Different from Other Dispute Resolution Processes?
To understand how mediation differs from other dispute resolution processes, it helps to know the characteristics of the most common processes used today.
Litigation is an adversarial process in which parties submit evidence to a judge or jury and then rely on the judge or jury to make and impose a binding decision on their dispute. Litigation is governed by formal rules and procedures of court and is generally time-consuming and expensive.
Arbitration is similar to litigation in that is an adversarial process where the parties submit evidence to a neutral third person (the arbitrator) whom then renders a decision on their dispute. However, arbitration usually occurs in private, rather than in a public court, and is not conducted under a court’s formal rules and procedures. In order to submit to arbitration, in most cases the parties must have already signed an arbitration agreement.
Mediation differs from litigation and arbitration in many ways. Perhaps the most significant difference is that mediation is a non-adversarial process, the parties do not formally argue their positions and give decision making power to a third party. Instead, the mediator’s role is to help the parties achieve a mutually agreeable resolution of their dispute.
What Are the Advantages of Mediation?
Mediation is a flexible dispute resolution system that can be used to resolve virtually any type of dispute. It allows the parties to work together and control the decision making process. Because mediation in non-adversarial, it also allows parties to achieve a “win-win” situation, as opposed to the winner and loser scenarios associated with litigation and arbitration. Another advantage of mediation is that it is a private and confidential process; the discussions that occur and agreements that result from mediation are not part of a public record, as they are in litigation.
When Does Mediation Occur?
Mediation can be initiated at different times in a transaction and for different reasons. First, mediation might be necessary when a dispute arises during a real estate transaction that could threaten the closing of the deal, which could affect a pending purchase for the seller, the buyer’s locked loan rate, or other scenarios specific to that transaction. Second, mediation can occur after the transaction for deposit issues, undisclosed defects, commissions, easements, or other such matters. All these issues can be mediated per the Purchase Agreement.
How Does the Mediation Clause in the Purchase Agreement Apply?
When the parties execute a Purchase Agreement, they agree to mediate any issues that may arise from the transaction. If a party refuses to submit to mediation, he can be denied attorney’s fees to which he might otherwise be entitled in subsequent litigation or arbitration. The purpose of the mediation clause is to get the parties to the table where, under a mediator’s expert guidance, they can resolve the dispute on their own terms, inexpensively and expeditiously.
Do I Need a Lawyer at Mediation?
Although the presence of an attorney is not required, you may bring one if you are unsure how to proceed with mediation or feel more comfortable with representation. This will increase your costs. You have the option of seeking a lawyer’s advice prior to mediation, or using a lawyer’s services to help you prepare to represent yourself. One key to successful mediation is to identify what you need in order to feel comfortable during the process.
Am I Entitled to Use Witnesses?
Ordinarily witnesses are not necessary, since parties are not attempting to “prove” a case. Sometimes a witness can be helpful and might be invited to participate at the discretion of the mediator and with the agreement of the other parties. Because all parties must agree to witnesses’ participation, you should contact the case administrator prior to the mediation to obtain such agreements.
What if Mediation Does Not Resolve My Dispute?
While statistics show that mediation is highly successful, the parties are free to pursue any other available system of dispute resolution in the event the mediation does not resolve the dispute. Even if this is the case, mediation can still prove valuable by narrowing areas of dispute and allowing the parties to express their grievances, thus allowing future proceedings to be more efficient and focused. [/ezcol_4fifth_end]