Real Estate Mediation Center

Mediation Guide

 

 

REMC_MediationCenter-(1)

Mediation Guide

The Real Estate Mediation Center (REMC) handles only real estate disputes. Our clients include buyers, sellers, brokers, agents and any other parties who participated in the transaction.

At REMC, you can quickly resolve any disputes in a convenient, cost-effective, and confidential manner. 

What Is Mediation?

Mediation is a process in which a neutral person-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.

Mediation Terms     Mediator Overview     Frequently Asked Questions 

Stages Of Mediation

I. Agreement of Parties

Parties can initiate mediation if they have agreed to use it under a clause in a real estate contract or other written agreement that calls for mediation, such as the Residential Purchase Agreement.

II. Initiation of Mediation

Any party to the mediation clause can initiate the process by completing, signing and submitting to the Real Estate Mediation Center a Request for Mediation form, which should contain or be accompanied by all the following information that is known and readily available:

  • A copy of the executed contract for the sale of real estate containing the mediation clause, or a copy of any other written agreement that invokes mediation.
  • In the absence of such a contract clause or other agreement, a written request by any party seeking to have the Real Estate Mediation Center attempt to persuade others to submit an existing dispute or claim to mediation.
  • The names, addresses and telephone numbers of the parties you want invited to the mediation (do not include witnesses)
  • The nature and amount of the claim; that is, a brief statement of the facts that give rise (the claim and the monetary damages or other relief sought.
  • Dates during the four-week period following submission of the request when the party will be available for a mediation conference. The case administrator will contact all parties to find a mutually agreeable date for mediation.
  • Payment for the filing fee.

III. Solicitation of Response

The Real Estate Mediation Center will then solicit from the named parties a Response to Request for Mediation form, as well as dates when they are not available and payment of a filing fee.

IV. Selection of Mediator

Within ten days after receipt of the Response to Request for Mediation form, the Real Estate Mediation Center appoints a qualified mediator. No one can serve as a mediator in any dispute if that person has any financial or personal interest in the results of the mediation unless, after full disclosure, the parties have all given written consent.

Mediation is a process in which an independent, neutral third party (known as a Mediator) facilitates communication between disputants and assists them in reaching a mutually acceptable resolution of all or part of their dispute. Mediation is a unique process in that the mediator is not the decision maker, the parties are.

Although the mediator will not decide the outcome of the case, it is essential that the parties have complete confidence in the mediator’s ability to conduct the mediation in a fair, impartial and even-handed manner without favoring any party.

The REMC has adopted the following Policy:

“A mediator shall not mediate a matter in which he or she cannot do so without impartiality. A mediator shall identify and disclose all potential grounds upon which a mediator’s impartiality might reasonably be questioned. Such disclosure should be made at the earliest opportunity, prior to the start of a mediation and in time to allow the parties to select an alternate mediator.

Such disclosure should include the identification of any previous selection{s) as a neutral by any party during the prior two years, and any known current or past personal or professional relationship or affiliation with any participant which might reasonably raise a question as to the mediator’s impartiality.”

The purpose of a mediator’s disclosure is to acknowledge any relationships that could raise a question as to the mediator’s impartiality. When a mediator makes a disclosure, it should not be assumed that the mediator cannot conduct the mediation impartially. Many disclosures are made by mediators to avoid the appearance of bias or partiality-not because any actual bias exists.

For each case, the REMC provides the mediator with the case name and the names of all counselor persons appearing without counsel. They are not given the names of additional parties, company representatives or other consultants. They are only required to make disclosures based on the information they are given. However, in order to avoid any delay or cancellation, please assist the mediator by providing the REMC with the names of others who will be attending the mediation. The duty to disclose is a continuing duty and any doubts about disclosure should be resolved in favor of making the disclosure. It will then be up to the parties to decide if they feel the mediator can or cannot be impartial and if they are willing to waive any potential conflict.

To facilitate the disclosure process, the REMC has developed the Mediator Disclosure form. If you have any questions about these requirements, please contact the REMC at 858-715-8020. If you have any questions about the actual disclosures, please contact the mediator directly.

V. Time and Place of Mediation Conference

Within ten days after receipt of the Response to Request for Mediation form, the Real Estate Mediation Center sets the date, time and place of the mediation conference. The conference date cannot be more than six weeks after the date the Request for Mediation form is received, and must allow for at least ten days advance notice, unless the parties request otherwise. The Real Estate Mediation Center notifies all parties who have agreed to participate in the mediation.

VI. Preparation for the Mediation Conference

To prepare for a mediation, the parties should:

  • Define and analyze the issues involved in the dispute.
  • Recognize the parameters of the given situation, such as realistic expectations, time constraints, available resources, legal ramifications, business or trade practices, costs, etc. Identify your needs and interest in settling the dispute.
  • Prioritize the issues in light of your needs.
  • Determine course of actions, positions, and tradeoffs.
  • Explore a variety of possible solutions – an initial proposal (your ideal desires, stated with enough room to negotiate); a fallback proposal (acceptable alternatives); a bottom-line proposal (a final option which you absolutely must have).
  • Seek to make your proposals reasonable and legitimate and be willing to accommodate needs of the other party.
  • Ascertain the strengths and weaknesses of your cases.
  • Prepare facts, documents and sound reasoning to support your claims. Bring documentation and back-up materials to mediation to add to the credibility of your issue, or in case the mediator needs additional information.
  • Anticipate’ the other party’s needs, demands, strengths and weaknesses, positions, and version of facts.
  • Focus on the interests of each party, rather than on current positions.
  • Develop your strategies and tactics through discussion of issues, presentation of proposals and testing of the other party’s positions.

VII. Conduct of Mediation Conferences

At the mediation conference, the parties will be expected to produce all information reasonably required for the mediator to understand the issues presented. This information usually includes relevant written materials, as well as a description of any witnesses and what each could testify to. For more complex cases, the mediator may ask the parties for written materials or information in advance of the conference. Parties who wish to submit information before the mediation conference should provide it to the case administrator at least 48 hours prior to the conference.

At the mediation conference, the mediator will conduct an orderly settlement negotiation. Parties or their representative must have authority to settle the case at that time. The mediator will be impartial and has no authority to force the parties to agree to a settlement.

VIll. Representation by Counsel

Although most disputes are successfully mediated without the assistance of counsel, any party can choose to be accompanied by and represented at the mediation conference by counsel. In the interest of fairness, however, a party who intends to be represented by counsel should notify the Real Estate Mediation Center and the other parties of such intent in its “Request” or “Response” at least five days prior to the conference.

IX. Confidentiality

In accordance with Evidence Code and Code of Civil Procedure (refer to code sections on pages 17-19 and confidentiality agreement on page 20), no aspect of the mediation shall be subject to discovery nor relied upon or introduced as evidence in any arbitration, or in any judicial or other proceeding, including but not limited to:

  • Views expressed or suggestions made by a party
  • Admissions made in the course of the mediation
  • Proposals made or views expressed by the mediator or the response of any party thereto
  • Any writing prepared for, in the course of, or pursuant to the mediation.

No privilege shall be affected by disclosures made in the course of mediation. Disclosure of any records, reports, or other documents received or prepared by the Real Estate Mediation Center cannot be compelled.

X. Mediated Settlement

The mediator will put the mediated settlement in writing, and all parties who agree to its terms will date and sign it at the mediation conference. If a party requests and all parties agree, the agreement may be drafted or reviewed by private counsel prior to signing. The settlement must be signed within ten days of the conclusion of the mediation conference.

XI. Judicial Proceedings and Immunity

The Real Estate Mediation Center maintains, for statistical purposes, a record of all mediations conducted as a result the Dispute Resolution System. The records are only available to the Greater San Diego Association of REALTORS®.

Neither the Real Estate Mediation Center nor the mediator may be deemed “necessary parties” in any judicial proceedings relating to the mediation. Under Evidence Code section 703.5, the mediator may not testify in any subsequent civil proceeding as to any communication that occurred in the mediation. Neither the Real Estate Mediation Center nor any mediator serving within it is liable to any party for any act, error or omission in connection with the mediation.[/two_third]