By Kay Wilson-Bolton
January 1, 2008
In recent years, there has bee a dramatic increase in litigation, including real estate. Turning to the courts to resolve disputes seems to be the first reaction these days to resolving a problem. If you have been lied to and can prove it, and you have suffered substantial damages, attorneys are likely your best advocate in litigation, particularly if the violator has insurance.
Buyers and sellers of real estate are usually are able to negotiate away the little disputes that arise in the course of their transactions through mediation and arbitration.
Mediation is growing in popularity, and it dramatically reduces the time and cost (both emotional and financial) of resolving disputes. Most real estate contracts provide for pre-agreement options to mediate disputes that might arise.
Mediation is the term used to describe a relatively informal form of dispute resolution that occurs outside of the court system where the parties to the dispute are assisted by a neutral third person.
Negotiation is the process where parties meet to discuss a settlement of their dispute. This can be done face-to-face or through authorized representatives, such as attorneys. Negotiation is usually done outside of the court system and does not have to follow or conform to any formal rules or procedures.
The mediator is not empowered to impose a decision on the parties but to facilitate discussions and negotiation with the goal of assisting them in reaching a mutually acceptable settlement.
Litigation is an adversarial
process whereby the parties submit evidence to a judge or jury and wait for a binding decision. Litigation is governed by formal rules and procedures of court and generally is time consuming and expensive—with a winner and a loser.
Arbitration is similar to litigation in that it is an adversarial process whereby the parties submit evidence to a neutral third person (the arbitrator) who then renders a binding decision regarding the dispute which is not subject to appeal.
Since mediation is non-adversarial, it also allows the parties to achieve a “win-win” outcome, in contrast to the winner-and-loser scenarios associated with litigation and arbitration. The parties work together for resolution.
There are numerous private mediators and mediation services. The cost of private mediation can vary but typically includes an initial filing or processing fee plus an hourly fee for the mediator’s services, both of which can vary depending on the mediator or mediation service.
Parties contemplating mediation should compare mediation providers and their costs prior to selecting a mediation service. Usually the parties agree to divide mediation costs equally between them.
Working out the smaller problems in civilized dialogue is always best. You will sleep better and keep more of your money.
If you have a problem with a REALTOR®, you can call the Ventura County Coastal Association of REALTORS® at 805.981.2100 and ask for an Ombudsman to assist in early resolution.
Kay Wilson-Bolton is the owner of CENTURY 21 Buena Vista and CENTURY 21 Ability. She brings a regional perspective to local issues. She can be reached at 805.340.5025. Her web address is www.readysetkay.com