Real Estate Mediation Center

Mediation — A Quick Resolution of Disputes

Mediation — A Quick Resolution of Disputes

Clarity on a Little Noticed or Understood Provision

A little noticed and understood provision in the standard form used in San Diego for residential real estate purchases is the mediation clause. In it the buyer and seller agree to mediate any dispute they have. If a party refuses to mediate, s/he can be denied attorneys fees that s/he might otherwise be entitled to in subsequent litigation or arbitration.

Unfortunately, due to the complexity of the real estate transaction and the nature of California’s laws which favor the buyer, disputes do arise both during escrow and after. The purpose of the mediation clause is to get the parties to the table where, under the expert guidance of the mediator, they can resolve the dispute on their own terms, expeditiously and inexpensively.

In arbitration, another clause in the standard form which the parties often sign, a third party, often a lawyer or retired judge, decides the dispute, and that decision is binding, just as if a judge made it. But there is no appeal from an arbitration award like there is from a judgement.

So, besides being quick and inexpensive, another advantage of mediation is that no third party imposes a decision — the parties find their own terms for resolution.

Another advantage to mediation is that the parties don’t have to go through lengthily pretrial proceedings, such as depositions, and then sit through a trial. The proceedings and especially the trial can be so distracting and upsetting that a party loses grip on the rest of his or her life. And after all that, your life is in the hands of a judge or jury. In either case, the decision often seems to be wrong.

In mediation a neutral, trained mediator guides the parties to their own resolution. At the San Diego Association of REALTOR®s, our mediation success rate 80%, and that is the norm for any good mediation program. Some of us at the Association have achieved 90% and even 100% success rates.

And when agreement is reached, payment soon follows. Seldom is there any need to pursue collection procedures as is often the case after a acourt trial.

There are other good mediation programs in San Diego besides the one at the San Diego Association of REALTOR®s. The major ones are the American Arbitration Association, J.A.M.S./ENDISPUTE, and the San Diego Mediation Center. Cost varies widely, but the Association’s program is one of the least expensive. It is available to any buyer or seller, as well as REALTOR®s.