The Basics of Property Dispute Mediation

Mediation, Real Estate Laws

property dispute mediationIf you find yourself in the middle of a real estate or boundary dispute, you need to learn about your state’s (or your home’s state) real estate laws and regulations. These real estate laws can be difficult to navigate and shouldn’t be attempted without the consultation of a professional.

When seeking to resolve a property dispute, invested parties have three general options:

  1. Negotiation
  2. Arbitration
  3. Mediation

A settlement reached by both parties without the help of a neutral third-party is considered a negotiation. Many real estate agents and brokers negotiate to solve issues that arise during the home buying and selling process. For instance, the National Association of Realtors recommends doing a walk-through and inspection of a home before completing the purchase. If a homeowner accidentally puts a hole in the wall while moving out and the buyer sees it during the final walk-through, the real estate agent may offer to pay for the repairs to keep the buyer from pursuing further action.

Arbitration is considered the most common avenue chosen for settling real estate disputes. This requires a third party to come and make a final settlement decision that both parties must adhere to. Each state has strict regulations regarding proper foreclosure as well as opportunities to pay before the property is sold. If a homeowner feels that they haven’t received proper opportunities to pay the bank, they can pursue arbitration.

Mediation is an ideal way to resolve a dispute that can’t be settled between two parties who refuse to pursue arbitration. Property dispute mediation entails a neutral third party stepping in to help those involved come to a mutual agreement. A mediator doesn’t make an ultimate decision for the settlement, but instead helps guide the feuding parties to a compromise that satisfies both. This method can be pursued as a last-ditch effort before seeking arbitration.

Mediation is the perfect way to solve breaches of contract. A real estate purchase contract outlines the timeline of the home buying and selling process, including a closing date. If either parties fall outside of that timeline and a dispute arises, property dispute mediation can remedy the situation.

Property dispute mediation is an avenue that many homeowners and real estate agents choose when an issue arises. While the causes of disputes vary from breech of contract to eviction, mediation allows both sides to be heard, making it a popular choice for those hoping to find a solution without getting a real estate lawyer involved.

Mediation of Commercial Real Estate Disputes

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Mediation has been proven effective

Mediation has been proven effective in commercial real estate disputes for a variety of reasons. Mediation may be conducted in a timely fashion, often within a few months of the dispute arising. For mediation, it is possible for just a few hours involved in one meeting will achieve mutual agreement or decide that the dispute must escalate. Also, when the agreement to mediate is part of a real estate contract, then the parties are bound to do so before they can escalate the dispute to litigation.

The Trained Mediator

Mediation evolves the parties to the dispute and a trained mediator. This mediator is someone completely unassociated with the dispute and has no vested interest in the outcome. They assist the parties in first identifying the sources of their conflict and then help them focus on the issues of real importance to them. The mediator then guides the parties through multiple possible solutions in an effort to reach an agreement, compromise or reconciliation. Another plus for mediation, when compared to arbitration, is that the parties may develop the solution themselves as opposed to having a solution determined for them by a third party. If the parties do reach a resolution and adopt a mediated agreement, the mediated agreement can be binding.

Litigation may have detrimental effects

If the parties are unable to reach a resolution or are dissatisfied with the mediation process, the parties may decide to pursue litigation. Litigation may have detrimental effects on both parties in a dispute. The value of the parties’ interest may be diminished by injunctions, restraining orders or other restrictions imposed by the courts. A variety of disputes can arise from a commercial property lease transaction depending on the terms of the lease, the type of the real estate and the uses of the property. Due to the possible long duration of litigation proceedings, land or floor space may not have the same value at the end of litigation as it did when the dispute arose.

DiJulio Law Group
https://www.dijuliolawgroup.com

Fences and Boundary Line Disputes

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Fences are frequent sources of boundary line disputes

Fences are frequent sources of boundary line disagreements and disputes. A business or a homeowner decides to erect a fence without first determining where the actual property line lies. His neighbor then learns that the fence was not placed on the actual boundary line, but on his property. The neighbor might decide that the fence being on his property (encroachment) doesn’t bother him and does nothing about it. This approach has the advantage of preserving good will between the neighbors. However, if either owner decides to sell their property, they will need to disclose the encroachment to any potential buyers so that they can consider the issue as part of their purchasing decision.

Equal Contributions to Boundary Line Fence Maintenance

California code requires adjacent landowners equally contribute to maintain walls and fences between them, unless one of the two landowners chooses to let the remaining sides of his property remain unfenced. However, if that landowner later fences in his property, he will be responsible for payment of his proportional share of the original value of the common fence.

Spite Fences and boundary line disputes

What have become known as “spite fences” are also regulated by code. They are defined as “a fence or other structure in the nature of a fence unnecessarily exceeding 10 feet in height maliciously erected or maintained for the purpose of annoying the owner or occupant of adjoining property is a private nuisance.” Trees and hedges that are planted in a row to form a perimeter may be deemed a fence. The law provides strong remedies, including injunctions, against “spite fences.”

Encroachment

A common question posed to real estate attorneys are in regard to a dispute with an adjoining landowner involving an encroachment. An example of encroachment would be when another person puts up a structure like a fence that intrudes on your property. This issue might come up if when one of your neighbors builds a structure that is partially on your property. Typically, the courts will apply one of three legal theories to resolve such a case. They are the doctrine of adverse possession or prescriptive easements, the agreed boundaries doctrine, or the relative hardship doctrine. Which method that would be most applicable in your particular situation is best determined by a qualified real estate attorney.

DiJulio Law Group
https://www.dijuliolawgroup.com

Mediation of Construction Disputes

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Mediation, An Alternative to Litigation and Arbitration

Mediation is an increasingly popular process for resolution of construction disputes for a variety of reasons. Resolving construction disputes with the usual methods of litigation and arbitration can prove costly in terms of time, money and emotional stress. Mediation provides an alternative for contractors, owners, developers, design professionals, and others who are dissatisfied with arbitration or litigation process as a means to resolve their construction disputes. In addition, experience has proven to many individuals that arbitration is not always a low-cost alternative to litigation in dispute resolution.

The process of mediation is one in which the mediator opens avenues of communication between the disputing parties. The mediator, without deciding the issues or imposing a solution on the parties, facilitates an understanding which allows the parties to reach a mutually agreeable resolution to their dispute. The mediator seeks to help the parties to reach an acceptable resolution based on their own ideas of what that resolution should be. A mediator does not pass judgment and so will not render an opinion as to the proper legal result of a particular dispute.

Mediation may be used in resolution of claims or conflicts between disputing parties at any point of the claim process. It can occur prior to the filing of a more formal court or arbitration process or prior to trial. Mediation allows for minimization of legal costs, a gain in control in the decision-making process, and a reduction of emotional stress. Business relationships suffer less damage because mediation provides the most rapid process for full and final resolution of disputes.

Mediation offers the possibility of a quick resolution

Disputes quite often have a negative impact on timely project completion, in addition to negative financial impact when costs accrue on a daily basis. The extensive legal preparation necessary for successful litigation tends to lead parties down a path that may not prove to be the most advantageous approach. Mediation gives disputing parties a voice in the process and also presents the possibility of a quick resolution, unlike waiting for court dates. If you find yourself in a construction dispute, mediation offers you and the other party, with or without your lawyers present, the opportunity to find solutions for problems more quickly than would happen in the courts or arbitration. In a fraction of the time and expense of litigation, mediation allows you and the other party with the help of an impartial mediator to gain control in the outcome and obtain a fair solution to your construction dispute.

DiJulio Law Group
https://www.dijuliolawgroup.com

How to Pick a Mediator Without Darts

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PICKING A MEDIATOR WITHOUT DARTS

Ninety-five percent of all cases settle, and only five percent go to trial but attorneys put 95% of their efforts into the litigation and throw a dart to pick a mediator. Why not make the mediation the best it can be by picking the best mediator for the job?

There are a lot of people who are mediators: retired judges, litigators, transactional attorneys, “recovering litigators,” professional mediators, and feel-good facilitators. Choosing a mediator is more than going to a computer and throwing a dart at one of the top five. There are ways to select the right mediator and increase your chances for a successful mediation.

What is the case all about? Is it two businessmen fighting over money or ego? Is it two neighbors fighting over the fence or honor? Different disputes call for different types of mediations.

Mediation has a greater chance of settling the case if all parties believe in the mediator’s reputation, personality and qualifications. Therefore, a process that comes from the adversarial process, is out. Even more so than arbitrators, mediators must be selected on a consensus basis, rather than being another part of the litigation game.

Just because the “other side” proposed a mediator that they have worked with before, that is no reason to reject that mediator. In fact, that may be a good reason to choose him or her. Remember the mediator has no ability to make you agree to anything you don’t want to, nor can they coerce or pressure you or your client. If the other attorney is proposing a mediator they are probably doing so because they feel that mediator has the ability to settle the case which is better than throwing a dart. If you are concerned that your opposing counsel may have too close a relationship with the mediator, ask the mediator! He will be very unlikely to outright lie to you.

While mediation is definitely an art form more than a science, there are many levels of tangible skills that mediators can study in order to become expert negotiators, facilitators and closers. Some mediators are ex-judges that are used to telling people how it is and forcing them to settle. This does not always work. “If the only tool you have is a hammer, you tend to treat most problems as nails.” The key issue is level of actual mediation training your mediator has (or how many tools they have to pull out of their tool box and use). Remember, if settling the case was easy to do, you wouldn’t need a mediator at all!

If they are highly emotional about the case, they will benefit (as will you) from a mediator who can handle emotional parties and help move them to a place where they can make a decision, gently guiding the case to a smooth settlement. If they are stubborn and intransigent, they may need logic and tenacious persuading. If they are weak decision-makers or are unsure about the fair value of their case, they may need the authority of a retired judge or seasoned litigator.

This may be the hardest part, but it’s critical to know yourself with clarity. For example, if you have a strong, authoritative presence, you may benefit from a mediator who has a softer touch to complement you. If you tend to be more left-brained, or a more logical or linear thinker, you may want a mediator who is more right-brained, more emotionally attuned, and perhaps creative. If you have a client control problem, you may want a mediator whose style is more firm and directive such as an ex-judge.

The important thing to consider in selecting the mediator is that they are familiar with what it takes to discuss the issues and to reach a resolution. It is not enough for the mediator to understand the legal issues; they must understand how to relate enough to the parties and their issues to bring the parties to a mutually agreeable resolution. It is not imperative, but it is helpful to have a mediator who understands the nature of the dispute or has a background in the general area. If the dispute is a dissolution of a family business, it can be helpful to have a mediator who understands partnership and corporate law, business law and contract law. If the dispute is in a technical area then it could be beneficial to have a mediator who has a technical training. If there is a business rather than ad personal dispute, it is helpful to have a mediator that has been in business or ran a firm.

Consider the Difficulty Level of the Case.

Many smaller cases can be less complex, such as a simple collection or personal injury case that most mediators might be able to resolve. Other cases are the type that only a small percentage of mediators can settle them. For example, in a complex construction case, dozens of parties and carries may be involved, all with agendas and limits. You will benefit by trying to match the skill level of the mediator to the difficulty level of the case.

Since the case is much more likely to be resolved in mediation the selection of the mediator may be more important that the selection of the arbitrator, the judge or the jury! Take the time to make a wise choice or take dart throwing lessons.

David DiJulio, Esq.

　

　

　

　

　

　

　

　

　

　

　

　

　

　

　

　

　

　

　

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Consider the Subject Matter.

Consider Your Own Strengths and Weaknesses.

Consider Your Client’s State of Mind.

Consider the Mediator’s Training in Resolving Conflict.

Consider your Opponents Suggestions

Consider the Mediators Reputation.

Consider the Case.

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