Merry Christmas, 2009 is around the corner. May Peace be with you. Jim W Hildreth
Thursday, December 25, 2008
Monday, December 22, 2008
UC Berkeley
Real Estate Disputes happen, but there is an alternative to litigation.
Non- disclosure issues, buyer seller disputes, agent disputes, construction defects, landlord, tenant issues are all challenges that may arise in a dispute.
In the past, the first reaction was to file a law suit and the old saying is than in litigation, the "Attorneys" are the winners.
For those who enter the legal system it can be time consuming, it is costly and can be stressful.
There is an alternative, which may be quicker, less expensive, private, confidential and its called mediation.
All California Association of Realtors (CAR) forms call out that in a dispute "Mediation" is built in as the first alternative in a dispute.
Mediation is a process in which two or more people involved in a dispute come together to try to find a fair and workable solution. They accomplish this through a mediator or a neutral third party who is trained in conflict resolution.
The homeowners came together to remodel a home, however their partnership dissolved during the remodel and the financial stress and emotions of a breakup were a major challenge.
The non-disclosure of past plumbing problems and the future cost of repair for the new homeowners vs a lawsuit.
Easement issues that prevented a future building site.
The non-disclosure by agents that the home had dual pane windows and the new buyer discovered they were only single pane windows.
The above issues were mediated and settled quickly and without long term litigation.
Use of mediation in resolving disputes is supported by the California Association of Realtors, many California Courts have a ADR program that can guide the parties to assist in resolving the real estate dispute.
Hildreth offers dispute resolution that is both cost effective, confidential and private and offers his service to the Bay Area, Central Valley & Mother Lode.
Hildreth also serves on multiple Superior Courts as a civil mediator
Jim W Hildreth, Real Estate Mediator
Real Estate Mediation Services
www.RealEstateMediation.org
(209) 536-1103
Non- disclosure issues, buyer seller disputes, agent disputes, construction defects, landlord, tenant issues are all challenges that may arise in a dispute.
In the past, the first reaction was to file a law suit and the old saying is than in litigation, the "Attorneys" are the winners.
For those who enter the legal system it can be time consuming, it is costly and can be stressful.
There is an alternative, which may be quicker, less expensive, private, confidential and its called mediation.
All California Association of Realtors (CAR) forms call out that in a dispute "Mediation" is built in as the first alternative in a dispute.
Mediation is a process in which two or more people involved in a dispute come together to try to find a fair and workable solution. They accomplish this through a mediator or a neutral third party who is trained in conflict resolution.
The homeowners came together to remodel a home, however their partnership dissolved during the remodel and the financial stress and emotions of a breakup were a major challenge.
The non-disclosure of past plumbing problems and the future cost of repair for the new homeowners vs a lawsuit.
Easement issues that prevented a future building site.
The non-disclosure by agents that the home had dual pane windows and the new buyer discovered they were only single pane windows.
The above issues were mediated and settled quickly and without long term litigation.
Use of mediation in resolving disputes is supported by the California Association of Realtors, many California Courts have a ADR program that can guide the parties to assist in resolving the real estate dispute.
Hildreth offers dispute resolution that is both cost effective, confidential and private and offers his service to the Bay Area, Central Valley & Mother Lode.
Hildreth also serves on multiple Superior Courts as a civil mediator
Jim W Hildreth, Real Estate Mediator
Real Estate Mediation Services
www.RealEstateMediation.org
(209) 536-1103
Old Superior Court, Calaveras, County, CA
Alternative Dispute Resolution Advantages of Mediation, it Increases
control Over the Process and the Outcome:
In ADR, parties typically play a greater role in shaping both the process and its outcome. In ADR, parties have the opportunity to tell their side of the story just as they do at trial. Some ADR processes, such as mediation, allow the parties to fashion creative resolutions that may not be available in a trial. Other ADR processes, such as arbitration, allow the parties to choose a qualified person or
expert in a particular field to decide the dispute.
control Over the Process and the Outcome:
In ADR, parties typically play a greater role in shaping both the process and its outcome. In ADR, parties have the opportunity to tell their side of the story just as they do at trial. Some ADR processes, such as mediation, allow the parties to fashion creative resolutions that may not be available in a trial. Other ADR processes, such as arbitration, allow the parties to choose a qualified person or
expert in a particular field to decide the dispute.
Friday, December 19, 2008
Mediation "Win-Win" vs Litigation
Mediation is a flexible dispute resolution system that can be used to resolve virtually any type of dispute. Mediation enables the parties to work together and keeps them in control of the decision making process (and usually free from lawyers, judges, arbitrators, or inflexible laws, court rules and procedures). Since mediation is nonadversarial, it also allows the parties to achieve a "win-win" outcome, in contrast 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 and agreements resulting from the mediation are not part of a public record as they are in litigation.
Sunday, December 14, 2008
Mediation Fee Update California
Trial Court Correctly Awarded Attorney's Fees To Winning Litigant In Arbitration Even Though Mediation Was Not First Attempted
Second District, Division Three Affirms Fee Award Because Contractual Fee Provision Did Not Absolutely Bar Recovery For a Failure to Mediate.
In past posts of May 30, 2008 on Lange v. Schilling and June 13, 2008 on Casillas v. Westhaven, LLC, we discussed California Association of Realtors (CAR) real estate purchase agreement forms that have a provision conditioning an award of attorney's fees on attempting to mediate before going to court or invoking arbitration rights. The appellate courts construe these clauses strictly, with Justice Fybel's decision in Frei v. Davey, 124 Cal.App.4th 1506, 1520 (2004) being one of the most cited decisions for enforcing the mediation condition precedent provisions. However, as with many disputes, "the devil is in the details"—the wording of the contractual fee clause can make all the difference in the world, as the next case illustrates.
Dewey v. Higgins, Case No. B200661 (2d Dist., Div. 3 Nov. 21, 2008) (unpublished) involved two in pro per litigants, a real estate agent and the affiliate real estate broker. Both parties agreed to arbitrate two lawsuits brought by broker against agent arising from unrelated disputes involving a commission agreement and trust deed. Agent eventually won the arbitration, with the award being confirmed as a judgment and broker ordered by the superior court to pay agent $24,584 in attorney's fees and $4,127 in costs. Broker challenged the fee award, arguing the failure to initiate mediation disqualified agent from recovering fees.
Not so, ruled the Court of Appeal,
The contractual fees clause was different from the CAR form, providing that fee entitlement was in jeopardy for not attempting mediation first "in the discretion of the arbitrator(s) or judge." The key discretionary language was what allowed the lower court to award fees even though mediation was not initiated. The fee award against broker was affirmed based on this crucial difference.
Article posted on www.calttorneyfees.com
Second District, Division Three Affirms Fee Award Because Contractual Fee Provision Did Not Absolutely Bar Recovery For a Failure to Mediate.
In past posts of May 30, 2008 on Lange v. Schilling and June 13, 2008 on Casillas v. Westhaven, LLC, we discussed California Association of Realtors (CAR) real estate purchase agreement forms that have a provision conditioning an award of attorney's fees on attempting to mediate before going to court or invoking arbitration rights. The appellate courts construe these clauses strictly, with Justice Fybel's decision in Frei v. Davey, 124 Cal.App.4th 1506, 1520 (2004) being one of the most cited decisions for enforcing the mediation condition precedent provisions. However, as with many disputes, "the devil is in the details"—the wording of the contractual fee clause can make all the difference in the world, as the next case illustrates.
Dewey v. Higgins, Case No. B200661 (2d Dist., Div. 3 Nov. 21, 2008) (unpublished) involved two in pro per litigants, a real estate agent and the affiliate real estate broker. Both parties agreed to arbitrate two lawsuits brought by broker against agent arising from unrelated disputes involving a commission agreement and trust deed. Agent eventually won the arbitration, with the award being confirmed as a judgment and broker ordered by the superior court to pay agent $24,584 in attorney's fees and $4,127 in costs. Broker challenged the fee award, arguing the failure to initiate mediation disqualified agent from recovering fees.
Not so, ruled the Court of Appeal,
The contractual fees clause was different from the CAR form, providing that fee entitlement was in jeopardy for not attempting mediation first "in the discretion of the arbitrator(s) or judge." The key discretionary language was what allowed the lower court to award fees even though mediation was not initiated. The fee award against broker was affirmed based on this crucial difference.
Article posted on www.calttorneyfees.com
Saturday, December 13, 2008
Advantages of Mediation
In a dispute mediation is an alternative to litigation. It saves Time & Money. dispute often can be settled or resolved much sooner with ADR Alternative Dispute Resolution, allowing parties to save money on attorney fees, court cost and expert fees.
In Merced County CA, the Superior Court has a $300 Early Mediation Program that is shared equally between the parties, that allows 3 hours of time with a mediator of your choice from a approved mediator list.
A "Neutral" can often assist the parties in the conflict for reaching a settlement prior to litigation.
A search for the Superior Court of each California County often will have a link to the ADR program and a list of Mediators or Arbitrators.
Many mediators will have a area of practice such as Family Law, Probate, Social Security, Real Estate, Construction Defects
In addition languages spoken such as Spanish
In Merced County CA, the Superior Court has a $300 Early Mediation Program that is shared equally between the parties, that allows 3 hours of time with a mediator of your choice from a approved mediator list.
A "Neutral" can often assist the parties in the conflict for reaching a settlement prior to litigation.
A search for the Superior Court of each California County often will have a link to the ADR program and a list of Mediators or Arbitrators.
Many mediators will have a area of practice such as Family Law, Probate, Social Security, Real Estate, Construction Defects
In addition languages spoken such as Spanish
Friday, December 12, 2008
Alternatives to Going to Trial Mediation
Did you know that most of the civil cases filed in court are resolved without going to trial?. Many people use processes other than trial to reslove their disputes. These alternative processes, known as Alternative Dispute Resolution or ADR, are typically less formal and adversarial than trial, and many use a problem-solving approch to help the parties reach agreement.
Beacuse of the potential advantages, it is worth considering using ADR before filing a lawsuit or the early stages of a lawsuit.
Mediation is one those alternatives.
Beacuse of the potential advantages, it is worth considering using ADR before filing a lawsuit or the early stages of a lawsuit.
Mediation is one those alternatives.
Wednesday, December 10, 2008
Merced County Historic Courthouse, CA
Jim W Hildreth Mediator was appointed to be a member of the Civil Mediation panel of the Merced County Superior Court ADR Program.
Jim W Hildreth looks forward in being a panel member and making contributions as a "neutral" and contributing his knowledge in real estate towards disputes involving real estate conflicts.
In addition to Merced, he is on the Civil Mediation panel with the Superior Court of Amador & Calaveras Counties.
Hildreth lives in the Historic City of Sonora.
Jim W Hildreth looks forward in being a panel member and making contributions as a "neutral" and contributing his knowledge in real estate towards disputes involving real estate conflicts.
In addition to Merced, he is on the Civil Mediation panel with the Superior Court of Amador & Calaveras Counties.
Hildreth lives in the Historic City of Sonora.
Tuesday, December 9, 2008
Tuolumne County Resolution Collaborative
The Superior Court of Tuolumne County had a open meeting to today on December 9th 2009 to discuss the initiation of a mediation program.
Potential Partners could be the courts in Tuolumne and neighboring Counties of Amador & Calaveras, School Districts, Law enforcement, DA Sheriff, community groups.
Funding, grants and the areas of application were discussed in a forum.
Jim W Hildreth, local Sonora mediator, discussed the value in small claims courts, landlord/tenant issues and the potential for merger of the already establised civil mediation panel with Amador & Calaveras County.
A report of the mediation concept will be drafted and presented in early 2009.
The concept was well recieved among partispants.
Potential Partners could be the courts in Tuolumne and neighboring Counties of Amador & Calaveras, School Districts, Law enforcement, DA Sheriff, community groups.
Funding, grants and the areas of application were discussed in a forum.
Jim W Hildreth, local Sonora mediator, discussed the value in small claims courts, landlord/tenant issues and the potential for merger of the already establised civil mediation panel with Amador & Calaveras County.
A report of the mediation concept will be drafted and presented in early 2009.
The concept was well recieved among partispants.
Monday, December 8, 2008
Amador County Mediation
The Amador County Superior Court has a active Civil Mediation Panel.
The court last month assigned a real estate easement dispute to Jim W Hildreth a mediation panel member.
The case involved multiple parties, and a trial date was set for spring of 2009.
The parties, including attorneys met in mediation and at the end of the day, decided to continue mediation for a second date.
6.5 hours latter a wriiten agreement will be produced and the outcome of the mediation will resolve the dispute and law suit.
The settlement occured for several reasons, the parties were willing to work at the dispute, the attorneys were professional and allowed the mediation to work.
The parties reached consenus and the court will have one less trial date.
The court last month assigned a real estate easement dispute to Jim W Hildreth a mediation panel member.
The case involved multiple parties, and a trial date was set for spring of 2009.
The parties, including attorneys met in mediation and at the end of the day, decided to continue mediation for a second date.
6.5 hours latter a wriiten agreement will be produced and the outcome of the mediation will resolve the dispute and law suit.
The settlement occured for several reasons, the parties were willing to work at the dispute, the attorneys were professional and allowed the mediation to work.
The parties reached consenus and the court will have one less trial date.
Saturday, November 29, 2008
Sonora Christmas Parade
These Sonora, CA kids did not need any mediation as they were in quick agreement, where they would sit watching the annual Sonora Christmas Parade
Thursday, November 20, 2008
Dambacher, Trujillo, & Wright
Sonora Law Firm that does business law, real estate, trust.
Jim W Hildreth
Real Estate Mediation Services
Jim W Hildreth
Real Estate Mediation Services
Tuesday, November 18, 2008
Sacramento Law Libary
11/18/2008 Sacramento, CA
The Sacramento Law Library is a outstanding resource for legal information, classes.
Jim W Hildreth Real Estate Mediator upgraded his skills and training by taking a class. "Mediate to Win" The class was taught by Hon. Darrell Lewis (ret)
Hildreth is a mediator who's speciality is real estate disputes.
The Sacramento Law Library is a outstanding resource for legal information, classes.
Jim W Hildreth Real Estate Mediator upgraded his skills and training by taking a class. "Mediate to Win" The class was taught by Hon. Darrell Lewis (ret)
Hildreth is a mediator who's speciality is real estate disputes.
Friday, November 14, 2008
Real Estate Mediation Can Be a Winner
Mediation is a consenual dispute resolution process where a neutral thrid party assist the disputing party in coming to a mutually agreeable solution. The mediator has no power to impose a decision as he would if he were an arbitrator or judge.
Issues such as non-disclosure, mold or water intrusion, easements, deposits may come to rise in a real estate transaction. Other issues such as landlord tenants issues are common.
Why litigate when you can mediate. www.RealestateMedation.org (209) 536-1103 Jim W Hildreth Real Estate Mediator
Thursday, November 13, 2008
Realtor- Real Estate Dispute
Real Estate Disputes can be very challenging for those in the real estate industry. Buyer, Seller Disputes, non-disclosure issues, dual agency conflicts.
Contracts in California call out for Mediation as a Alternative Dispute Resolution ADR as the first step.
Jim W Hildreth Real Estate Mediator
Real Estate Mediation Services
(209) 536-1103
www.RealEstateMediation.org
Contracts in California call out for Mediation as a Alternative Dispute Resolution ADR as the first step.
Jim W Hildreth Real Estate Mediator
Real Estate Mediation Services
(209) 536-1103
www.RealEstateMediation.org
Tuolumne County Courthouse
Real Estate Dispute? Conflict?
Real Estate Mediation Services
Jim W Hildreth Real Estate Mediator
Serving Northern California, Bay Area, Central Valley & Mother Lode
(209) 536-1103
www.RealEstateMediation.org
Real Estate Mediation Services
Jim W Hildreth Real Estate Mediator
Serving Northern California, Bay Area, Central Valley & Mother Lode
(209) 536-1103
www.RealEstateMediation.org
Thursday, August 21, 2008
Landlord/Tenant Disputes
August 21 2008 by Jim W Hildreth Real Estate Mediation
Today I was asked by a Sacramento, CA landlord to resolve 2 individual landlord/tenant disputes involving eviction.
Each party met and within one hour each a settlement was reached by all parties.
The stress of eviction, timing and involving families and cost to the landlord can be devastating.
Jim W Hildreth of Real Estate Mediation Services was able to act as a "Neutral" and open the communication lines.
The parties left the mediation with resolve.
Jim W Hildreth speciality is real estate issues and today's landlord/tenant dispute was the 27th dispute that he acted as a neutral and 55th overall with real estate disputes.
Jim W Hildreth Mediating Real Estate Disputes
http://www.realestatemediation.org/
(209) 536-1103
Jim W Hildreth-Mediator
www.RealEstateMediation.org
Tuesday, July 1, 2008
Disputes after Disputes
July 1 2008 by Jim W Hildreth Real Estate Mediation Services.
Its only Tuesday and its July 1st and my phone has been busy with mediation request and perhaps its the present economy.
My first call was to assist in a new bride who was not happy that the wedding hall, and coordinator did not live up to their promises, they were 3 hours behind, thus causing a problem for the entire day for the bride & groom and guest. A Mediation has been requested.
The second request is over a landlord/tenant dispute where the landlord gave recently a one year lease and now want to cancel the lease for a new buyer as the seller is facing the potential foreclosure and there are buyers who would like to purchase the home that has been for sale close to a year. Mediation has been requested.
The 3rd request is from a Landlord from Sacramento who wants a tenant to vacate.
It seems that Realtors are fighting over "Procuuring Cause" issues.
Buyers and sellers are fighting over non-disclosure issues.
I sence and have confidence that the majority of these disputes can be settled and as one mediator once said, "You see conflict, I see Opportunity"
Jim W Hildreth
Real Estate Mediation Services
950 S Washington St
Sonora, CA 95370
(209) 536-1103
Jim W Hildreth-Mediator
www.RealEstateMediation.org
Its only Tuesday and its July 1st and my phone has been busy with mediation request and perhaps its the present economy.
My first call was to assist in a new bride who was not happy that the wedding hall, and coordinator did not live up to their promises, they were 3 hours behind, thus causing a problem for the entire day for the bride & groom and guest. A Mediation has been requested.
The second request is over a landlord/tenant dispute where the landlord gave recently a one year lease and now want to cancel the lease for a new buyer as the seller is facing the potential foreclosure and there are buyers who would like to purchase the home that has been for sale close to a year. Mediation has been requested.
The 3rd request is from a Landlord from Sacramento who wants a tenant to vacate.
It seems that Realtors are fighting over "Procuuring Cause" issues.
Buyers and sellers are fighting over non-disclosure issues.
I sence and have confidence that the majority of these disputes can be settled and as one mediator once said, "You see conflict, I see Opportunity"
Jim W Hildreth
Real Estate Mediation Services
950 S Washington St
Sonora, CA 95370
(209) 536-1103
Jim W Hildreth-Mediator
www.RealEstateMediation.org
Sunday, June 29, 2008
Law Offices Sonora, CA 95370
Michael D Macomber is a Real Estate Attorney and Alan D Hamilton does Business Law & Real Estate.
Compliments of Jim W Hildreth
Real Estate Mediation Services
http://www.realestatemediation.org/
Amador County Courthouse, Jackson, CA
This is the "Old" Superior Court in downtown Jackson. Its typical of the Art Deco period.
Superior Court Trinity Co Weaverville, CA
Superior Court in Weaverville, CA. This is a working Court.
Mariposa County Courthouse
Mariposa County Courthouse, in Mariposa, CA. This is a working courthouse.
Friday, June 27, 2008
"Winning at Mediation"
June 27th 2008 by Jim W Hildreth Real Estate Mediation ServicesOne of the pleasures in my mediation practice is meeting other mediators, sharing ideas and often learning from their experience and wisdom.
Today I recieved from Nancy E Hudgins a San Francisco mediator-attorney who shared a compiltation of essays on mediation preparation.
The pamphlet started with an idea from her blog http://www.civilnegotiation.com/ on a series of post on preparing for mediation.
From developing a pre-mediation checklist, listening skills, matching the mediator, creating value, strategies to developing a plan.
I enjoyed the chapter that "Mediation is Not"
A armed conflict, hand -to-hand combat nor is it Moot Court.
Nancy explains that mediation is a different skill. One that is more collegial, cooperative, and collaborative.
Nancy believes that to always be positive and to stay positive.
I have learned that when I tell parties in a "Dispute" that by the end of the mediation we will settle this conflict today, it sets out a positive outcome.
Nancy invites the reader to "Construct your own plan" for successful negotiation or mediation.
Nancy E Hudgins website is http://www.hudginslaw.com/
Jim W Hildreth-Mediator
Real Estate Mediation Services
http://www.realestatemediation.org/
Tuesday, June 24, 2008
Real Estate Mediation
June 24th 2008 By Jim W Hildreth Real Estate Mediation Services
Jim W Hildreth Real Estate Mediator recently spoke in front of the Tuolumne County
(Sonora, CA) Bar Association.
The annual meeting took place at Azzos Italian Restaurant in Jamestown.
Jim discussed with the local bar members, how and why is interest in real estate mediation, is training and education and his experience both in the courts and in private mediation's.
Jim also reviewed with the Sonora Attorneys that "No Attorney fees will be awarded unless real estate litigants strictly comply with Mediation condition precedent in California Association of Realtors, CAR form purchase agreements" The case is Lange v.Schilling Case # C055471 (3rd Dist, May 28,2008
The consensus of the local bar is that the courts and attorneys are using Mediation as an alternative in disputes and prior to litigation.
Jim W Hildreth
Real Estate Mediation Services
http://www.RealEstateMediation.org
Jim W Hildreth-Mediator
www.RealEstateMediation.org
Jim W Hildreth Real Estate Mediator recently spoke in front of the Tuolumne County
(Sonora, CA) Bar Association.
The annual meeting took place at Azzos Italian Restaurant in Jamestown.
Jim discussed with the local bar members, how and why is interest in real estate mediation, is training and education and his experience both in the courts and in private mediation's.
Jim also reviewed with the Sonora Attorneys that "No Attorney fees will be awarded unless real estate litigants strictly comply with Mediation condition precedent in California Association of Realtors, CAR form purchase agreements" The case is Lange v.Schilling Case # C055471 (3rd Dist, May 28,2008
The consensus of the local bar is that the courts and attorneys are using Mediation as an alternative in disputes and prior to litigation.
Jim W Hildreth
Real Estate Mediation Services
http://www.RealEstateMediation.org
Jim W Hildreth-Mediator
www.RealEstateMediation.org
Friday, May 30, 2008
Mediate First Prior to Litigation
May 30 2008 by Jim W Hildreth
This is similiar to the Gibson case and under California Association of Realtors, mediation should occur first prior to litigation to collect Attorney Fee's by the prevailing party. Jim Hildreth
The following article and credit goes to http://www.calattorneysfees.com/
NO ATTORNEY’S FEES WILL BE AWARDED UNLESS REAL ESTATE LITIGANTS STRICTLY COMPLY WITH MEDIATION CONDITION PRECEDENT IN CAR FORM PURCHASE AGREEMENTS
Third District Denies Fees Where No Mediation Was Sought Before Commencement of Suit.
Call us somewhat psychic. However, in our May 22, 2008 post, we hinted that there would be future discussion of whether fees will be awarded where real estate sellers or purchasers failed to satisfy the mediation condition precedent in their contracts. Well, the time is now, because an unpublished Third District decision brings that message crashing home in dreaded fashion for a litigant who forfeited over $80,000 in fees for being noncompliant.
The case is Lange v. Schilling, Case No. C055471 (3d Dist. May 28, 2008) (unpublished). Its first paragraph is chilling and summarizes what happened:
“The standard residential purchase agreement bars attorney fees for a party who commences litigation without first attempting to mediate the dispute.Plaintiff Jay Lange filed his complaint before seeking mediation but, after plaintiff prevailed at trial, the trial court nevertheless awarded him attorney fees. We agree with other courts that the agreement mean what it says: plaintiff’s failure to seek mediation precludes an award of attorney fees. We therefore reverse the order.” (Slip Opn., at p. 1.)
Plaintiff buyer bought a lake house, and later sued sellers and sellers’ brokers for alleged nondisclosures. The California Association of Realtors (CAR) residential property purchase agreement had the standard clause requiring mediation as a condition precedent to an award of fees to the prevailing party. Mediation had to be pursued before resorting to arbitration or court action. Plaintiff sued before attempting mediation. Plaintiff sued first, hired an investigator to locate seller, and then demanded mediation after suit was commenced (offering to stay the litigation while mediation was pursued). The matter went to trial. Plaintiff recovered $13,475, jointly and severally, against sellers and sellers’ brokers. Plaintiff filed a motion to recover $113,096.03 in attorney’s fees from sellers. Sellers and plaintiff buyer entered into a settlement by which buyer agreed to look to brokers for satisfaction of any judgment and recovery of fees (with sellers to receive a portion of any fee recovery exceeding $100,000).
Brokers resisted the fee request by claiming plaintiff failed to attempt mediation before filing his complaint. The trial court disagreed and awarded $80,710.26 in fees. Brokers appealed.
Brokers won on appeal.
The Third District found the mediation condition precedent provision to be clear and unmistakable in meaning, significantly siding with Frei v. Davey, 124 Cal.App.4th 1506 (2004) (a Fourth District, Division 3 authored by Justice Fybel). The Court of Appeal found that plaintiff’s inefficiency in spending more than $113,000 in fees to recover a $13,000 judgment might have been avoided had mediation been pursued.
The Court of Appeal did not buy that plaintiff buyer was excused because he had difficulty locating sellers in order to request mediation. Rather, buyer did locate sellers. The appellate court believed that the buyer could have complied with the mediation provision by hiring the investigator, locating sellers, and then mailing an offer to mediate before filing of the complaint.
The Third District also rejected buyer’s suggestion that he substantially complied by offering to mediate shortly after filing the complaint. The Court of Appeal stated: “This provision would become meaningless if a party were allowed to recover attorney fees by making a request for mediation after litigation has begun and then claiming substantial compliance.” (Slip Opn., at p. 9.)
Quoting Frei, supra, 124 Cal.App.4th at 1508, the Third District concluded by observing: “This provision ‘means what is says and will be enforced.’ [Citation omitted.] The fee award must be reversed.” (Slip Opn., at p. 10.)
Not only did buyer lose his fee award, but the appellate court awarded brokers costs on appeal (which includes any attorney’s fees awardable under the residential purchase agreement fee clause).
The lesson is not hard to decipher: mediate before filing suit in order to preserve the ability to recoup fees under the CAR form contract. Appellate courts have not shown leniency towards interpreting these provisions other than in a very literal manner.
Jim W Hildreth-Mediator
www.RealEstateMediation.org
This is similiar to the Gibson case and under California Association of Realtors, mediation should occur first prior to litigation to collect Attorney Fee's by the prevailing party. Jim Hildreth
The following article and credit goes to http://www.calattorneysfees.com/
NO ATTORNEY’S FEES WILL BE AWARDED UNLESS REAL ESTATE LITIGANTS STRICTLY COMPLY WITH MEDIATION CONDITION PRECEDENT IN CAR FORM PURCHASE AGREEMENTS
Third District Denies Fees Where No Mediation Was Sought Before Commencement of Suit.
Call us somewhat psychic. However, in our May 22, 2008 post, we hinted that there would be future discussion of whether fees will be awarded where real estate sellers or purchasers failed to satisfy the mediation condition precedent in their contracts. Well, the time is now, because an unpublished Third District decision brings that message crashing home in dreaded fashion for a litigant who forfeited over $80,000 in fees for being noncompliant.
The case is Lange v. Schilling, Case No. C055471 (3d Dist. May 28, 2008) (unpublished). Its first paragraph is chilling and summarizes what happened:
“The standard residential purchase agreement bars attorney fees for a party who commences litigation without first attempting to mediate the dispute.Plaintiff Jay Lange filed his complaint before seeking mediation but, after plaintiff prevailed at trial, the trial court nevertheless awarded him attorney fees. We agree with other courts that the agreement mean what it says: plaintiff’s failure to seek mediation precludes an award of attorney fees. We therefore reverse the order.” (Slip Opn., at p. 1.)
Plaintiff buyer bought a lake house, and later sued sellers and sellers’ brokers for alleged nondisclosures. The California Association of Realtors (CAR) residential property purchase agreement had the standard clause requiring mediation as a condition precedent to an award of fees to the prevailing party. Mediation had to be pursued before resorting to arbitration or court action. Plaintiff sued before attempting mediation. Plaintiff sued first, hired an investigator to locate seller, and then demanded mediation after suit was commenced (offering to stay the litigation while mediation was pursued). The matter went to trial. Plaintiff recovered $13,475, jointly and severally, against sellers and sellers’ brokers. Plaintiff filed a motion to recover $113,096.03 in attorney’s fees from sellers. Sellers and plaintiff buyer entered into a settlement by which buyer agreed to look to brokers for satisfaction of any judgment and recovery of fees (with sellers to receive a portion of any fee recovery exceeding $100,000).
Brokers resisted the fee request by claiming plaintiff failed to attempt mediation before filing his complaint. The trial court disagreed and awarded $80,710.26 in fees. Brokers appealed.
Brokers won on appeal.
The Third District found the mediation condition precedent provision to be clear and unmistakable in meaning, significantly siding with Frei v. Davey, 124 Cal.App.4th 1506 (2004) (a Fourth District, Division 3 authored by Justice Fybel). The Court of Appeal found that plaintiff’s inefficiency in spending more than $113,000 in fees to recover a $13,000 judgment might have been avoided had mediation been pursued.
The Court of Appeal did not buy that plaintiff buyer was excused because he had difficulty locating sellers in order to request mediation. Rather, buyer did locate sellers. The appellate court believed that the buyer could have complied with the mediation provision by hiring the investigator, locating sellers, and then mailing an offer to mediate before filing of the complaint.
The Third District also rejected buyer’s suggestion that he substantially complied by offering to mediate shortly after filing the complaint. The Court of Appeal stated: “This provision would become meaningless if a party were allowed to recover attorney fees by making a request for mediation after litigation has begun and then claiming substantial compliance.” (Slip Opn., at p. 9.)
Quoting Frei, supra, 124 Cal.App.4th at 1508, the Third District concluded by observing: “This provision ‘means what is says and will be enforced.’ [Citation omitted.] The fee award must be reversed.” (Slip Opn., at p. 10.)
Not only did buyer lose his fee award, but the appellate court awarded brokers costs on appeal (which includes any attorney’s fees awardable under the residential purchase agreement fee clause).
The lesson is not hard to decipher: mediate before filing suit in order to preserve the ability to recoup fees under the CAR form contract. Appellate courts have not shown leniency towards interpreting these provisions other than in a very literal manner.
Jim W Hildreth-Mediator
www.RealEstateMediation.org
Friday, May 9, 2008
All Mediators Are Not Created Equal
I'm always looking for good articles about mediation and the following on www.mediate.com was worthy of sharing written Lee Jay Berman
Choose Carefully: All Mediators Are Not Created Equal
by Lee Jay Berman
April 2008
If a mediation is going to have a chance at success, perhaps the most important decision is who will sit in the neutral chair at the head of the table. From case to case, that decision will vary. Attorneys owe it to their clients to invest the time in investigating, strategizing and selecting the right mediator for each case. In a time where we have retired judges, litigators, transactional attorneys, so called “recovering litigators”, and professional mediators available, and when more mediators are specializing in particular areas of practice, here are 13 tips on the best ways to select a mediator effectively.
The old days of each side picking three and scratching two from the other’s list, a process that comes from the adversarial arbitration process is out. Even more so than arbitrators, mediators must be selected on a consensus basis, rather than a least objectionable basis. The mediation has a greater chance of settling the case if all parties buy into the mediator’s reputation, personality and qualifications for a successful mediation.
Just because the “other side” proposed a mediator they have worked with before, that is no reason to “ding” that mediator. Consider three things. First, the mediator has no ability to coerce or pressure you or your client, or to make you agree to anything you don’t want to. Second, if the other attorney is proposing a mediator they are probably doing so because they feel the mediator has the ability to settle the case which means that mutually agreeable terms have been reached. Third, if you are concerned that the mediator and opposing counsel’s working relationship may be too close for comfort, ask the mediator some questions. Perhaps it is important in reaching a resolution that your opposing counsel feel that he or she can trust the mediator, and that the mediator has the ability to reach that attorney (or client) in a way that can be more persuasive than another mediator that they do not know or that is not familiar.
Consider the mediator’s training in resolving conflict. While mediation is an art form more than a science, there are many levels of tangible skills that mediators can study and learn to make them better negotiators and facilitators. Some mediators on court panels have merely completed a single 25-hour mediation course, while others make mediation their full-time career and study for hundreds of hours with the best instructors in the world. Mediators often refer to their mediation skills as tools in their tool box or the bullets in their gun. My website says, “If the only tool you have is a hammer, you tend to treat most problems as nails.” The difference in the level of training your mediator has in actual mediation skills (or how many tools they have to pull out of their tool box and use) may be just the difference you need to get your particular case settled. After all, if settling the case was easy to do, you wouldn’t need a mediator at all!
Consider the mediator’s tenacity. Lately I have been asked to do a lot of second mediations for cases that went first to an ineffective mediator. All too often the attorneys tell me that the mediator heard the initial dollar amounts that each side was looking to settle for and gave up too easily, or didn’t have the skills or tenacity to see the case through to resolution. A mediator can only keep going if they have the skills to keep trying different things, and if they have what some have called “an iron rear end” and are willing to sit for as long as it takes to get it resolved. That tenacity, or resolve to resolve a case, is one of the most important features to look for in evaluating a mediator, or in interviewing other counsel who have worked with that mediator in the past.
Consider the other attorney(s) in the case and their clients and either ask them or size up the type of mediator to which they would best respond. Some cases (and some opposing counsel) require an authoritative voice of a retired judge or litigator with multiple decades of experience, others may respond better to a persuasive, personable mediator who reaches people well and can see the big picture. Some cases require a macho authority figure, while others may do better with a feminine touch. It is important to consider variables such as these in each case. No case will be like any other, since the personalities at the table will be different and will respond to different types of mediators.
Consider your client’s state of mind regarding the litigation. If they are highly emotional about the case, they will benefit (as will you) from a mediator who can handle emotional parties and gently guide 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.
Consider your own strengths and weaknesses. 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, or more emotionally attuned, and perhaps creative. If you have a client control problem, you may want a mediator whose style is more directive. You will also need to consider your relationship with opposing counsel and whether you want more of a facilitated negotiation or an evaluative appraisal of the case.
Consider the timing of the case. If for some reason outside your control your case is ordered to mediation before a particular date, and that date is too early in the case, you will want to select a tenacious mediator who is dedicated to following the case through the litigation process. Experienced mediators know that sometimes, the first day of mediation is the start of the mediation process, but that additional key discovery may be required before a final settlement can be reached. In these cases, a mediator who will take the lead in facilitating the discovery process will be an asset. For this, you will want a mediator who is a real believer in peaceful resolutions, and not letting litigation get out of control before trying to settle a case. This could range from a no-nonsense retired judge to a former general counsel to a non-attorney mediator with business and economic sense. This may be important in cases where you have general counsel involved in a case.
Consider the subject matter. It is not imperative, but it is helpful to have a mediator who understands the nature of the dispute. If the dispute is a dissolution of a family business, it is helpful to have a mediator who understands partnership and corporate law, business law and contract law. It will be beneficial to have a mediator who is familiar with the workings of the particular industry in which the family operates their business. It may be even more beneficial to have a mediator who specializes in or grew up in a family business and understands the dynamics involved in these unique situations. 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 counsel to bring the parties to a resolution they are willing to go along with.
Because such a large volume of cases going into mediation are doing so as a result of a court order, you must examine the court program rules and the ability to select a mediator of your choosing within the court’s program. Just because a case may be court-ordered, you may still have the right to pick your mediator. Most courts allow the parties to select their mediators from a list of available mediators. Many courts have followed Santa Barbara Superior Court’s successful Court Administered Dispute Resolution (CADRe) Program by listing the mediators and making their resumes available on the court’s web site. Take the time to review these resumes and comb for the qualities described above.
If the court doesn’t assign the mediator to a case, you should request resume information on the potential mediators if it is not made readily available to you. Allowing the court to select the mediator for you when you have the ability to participate in that decision is doing your client a disservice. Furthermore, even when the court offers a list of “approved” mediators, that should not limit your ability to select and hire a mediator of your choosing if you do not see one on the court panel that has the qualifications that you want. What should be more important is actually settling the case. That is, after all, the only reason to begin the mediation process.
Ask colleagues. But ask questions that will give you useful information such as what has been outlined above. Ask specific questions about each of these points, rather than simply asking if your colleague liked the mediator or thought he or she was competent. Even less informative is asking whether the case settled, since there are so many variables involved in whether a case settles or not that the mediator may have been unable to overcome all of them.
Finally, there is the list of things not to do. The dartboard approach is out. So is the “pick an address label from this random list offered by the court” method. Coin flipping is shameless. And picking the one with the biggest ads in the legal periodicals may not tell you enough, either. Often times, name recognition simply means a mediator markets well, but does not necessarily imply competence or appropriateness for your case. Letting opposing counsel select without asking any questions of them is paramount to telling them you are not planning on taking the mediation process seriously and do not care to put the effort into it.
The mediator you select may be the most important decision you make regarding the mediation. Regardless of whether the mediation is ordered or voluntary, take the time to pour through resumes, ask colleagues, and do the appropriate research. Make the decision wisely and settle your case!
Jim W Hildreth-Mediator
www.RealEstateMediation.org
Choose Carefully: All Mediators Are Not Created Equal
by Lee Jay Berman
April 2008
If a mediation is going to have a chance at success, perhaps the most important decision is who will sit in the neutral chair at the head of the table. From case to case, that decision will vary. Attorneys owe it to their clients to invest the time in investigating, strategizing and selecting the right mediator for each case. In a time where we have retired judges, litigators, transactional attorneys, so called “recovering litigators”, and professional mediators available, and when more mediators are specializing in particular areas of practice, here are 13 tips on the best ways to select a mediator effectively.
The old days of each side picking three and scratching two from the other’s list, a process that comes from the adversarial arbitration process is out. Even more so than arbitrators, mediators must be selected on a consensus basis, rather than a least objectionable basis. The mediation has a greater chance of settling the case if all parties buy into the mediator’s reputation, personality and qualifications for a successful mediation.
Just because the “other side” proposed a mediator they have worked with before, that is no reason to “ding” that mediator. Consider three things. First, the mediator has no ability to coerce or pressure you or your client, or to make you agree to anything you don’t want to. Second, if the other attorney is proposing a mediator they are probably doing so because they feel the mediator has the ability to settle the case which means that mutually agreeable terms have been reached. Third, if you are concerned that the mediator and opposing counsel’s working relationship may be too close for comfort, ask the mediator some questions. Perhaps it is important in reaching a resolution that your opposing counsel feel that he or she can trust the mediator, and that the mediator has the ability to reach that attorney (or client) in a way that can be more persuasive than another mediator that they do not know or that is not familiar.
Consider the mediator’s training in resolving conflict. While mediation is an art form more than a science, there are many levels of tangible skills that mediators can study and learn to make them better negotiators and facilitators. Some mediators on court panels have merely completed a single 25-hour mediation course, while others make mediation their full-time career and study for hundreds of hours with the best instructors in the world. Mediators often refer to their mediation skills as tools in their tool box or the bullets in their gun. My website says, “If the only tool you have is a hammer, you tend to treat most problems as nails.” The difference in the level of training your mediator has in actual mediation skills (or how many tools they have to pull out of their tool box and use) may be just the difference you need to get your particular case settled. After all, if settling the case was easy to do, you wouldn’t need a mediator at all!
Consider the mediator’s tenacity. Lately I have been asked to do a lot of second mediations for cases that went first to an ineffective mediator. All too often the attorneys tell me that the mediator heard the initial dollar amounts that each side was looking to settle for and gave up too easily, or didn’t have the skills or tenacity to see the case through to resolution. A mediator can only keep going if they have the skills to keep trying different things, and if they have what some have called “an iron rear end” and are willing to sit for as long as it takes to get it resolved. That tenacity, or resolve to resolve a case, is one of the most important features to look for in evaluating a mediator, or in interviewing other counsel who have worked with that mediator in the past.
Consider the other attorney(s) in the case and their clients and either ask them or size up the type of mediator to which they would best respond. Some cases (and some opposing counsel) require an authoritative voice of a retired judge or litigator with multiple decades of experience, others may respond better to a persuasive, personable mediator who reaches people well and can see the big picture. Some cases require a macho authority figure, while others may do better with a feminine touch. It is important to consider variables such as these in each case. No case will be like any other, since the personalities at the table will be different and will respond to different types of mediators.
Consider your client’s state of mind regarding the litigation. If they are highly emotional about the case, they will benefit (as will you) from a mediator who can handle emotional parties and gently guide 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.
Consider your own strengths and weaknesses. 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, or more emotionally attuned, and perhaps creative. If you have a client control problem, you may want a mediator whose style is more directive. You will also need to consider your relationship with opposing counsel and whether you want more of a facilitated negotiation or an evaluative appraisal of the case.
Consider the timing of the case. If for some reason outside your control your case is ordered to mediation before a particular date, and that date is too early in the case, you will want to select a tenacious mediator who is dedicated to following the case through the litigation process. Experienced mediators know that sometimes, the first day of mediation is the start of the mediation process, but that additional key discovery may be required before a final settlement can be reached. In these cases, a mediator who will take the lead in facilitating the discovery process will be an asset. For this, you will want a mediator who is a real believer in peaceful resolutions, and not letting litigation get out of control before trying to settle a case. This could range from a no-nonsense retired judge to a former general counsel to a non-attorney mediator with business and economic sense. This may be important in cases where you have general counsel involved in a case.
Consider the subject matter. It is not imperative, but it is helpful to have a mediator who understands the nature of the dispute. If the dispute is a dissolution of a family business, it is helpful to have a mediator who understands partnership and corporate law, business law and contract law. It will be beneficial to have a mediator who is familiar with the workings of the particular industry in which the family operates their business. It may be even more beneficial to have a mediator who specializes in or grew up in a family business and understands the dynamics involved in these unique situations. 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 counsel to bring the parties to a resolution they are willing to go along with.
Because such a large volume of cases going into mediation are doing so as a result of a court order, you must examine the court program rules and the ability to select a mediator of your choosing within the court’s program. Just because a case may be court-ordered, you may still have the right to pick your mediator. Most courts allow the parties to select their mediators from a list of available mediators. Many courts have followed Santa Barbara Superior Court’s successful Court Administered Dispute Resolution (CADRe) Program by listing the mediators and making their resumes available on the court’s web site. Take the time to review these resumes and comb for the qualities described above.
If the court doesn’t assign the mediator to a case, you should request resume information on the potential mediators if it is not made readily available to you. Allowing the court to select the mediator for you when you have the ability to participate in that decision is doing your client a disservice. Furthermore, even when the court offers a list of “approved” mediators, that should not limit your ability to select and hire a mediator of your choosing if you do not see one on the court panel that has the qualifications that you want. What should be more important is actually settling the case. That is, after all, the only reason to begin the mediation process.
Ask colleagues. But ask questions that will give you useful information such as what has been outlined above. Ask specific questions about each of these points, rather than simply asking if your colleague liked the mediator or thought he or she was competent. Even less informative is asking whether the case settled, since there are so many variables involved in whether a case settles or not that the mediator may have been unable to overcome all of them.
Finally, there is the list of things not to do. The dartboard approach is out. So is the “pick an address label from this random list offered by the court” method. Coin flipping is shameless. And picking the one with the biggest ads in the legal periodicals may not tell you enough, either. Often times, name recognition simply means a mediator markets well, but does not necessarily imply competence or appropriateness for your case. Letting opposing counsel select without asking any questions of them is paramount to telling them you are not planning on taking the mediation process seriously and do not care to put the effort into it.
The mediator you select may be the most important decision you make regarding the mediation. Regardless of whether the mediation is ordered or voluntary, take the time to pour through resumes, ask colleagues, and do the appropriate research. Make the decision wisely and settle your case!
Jim W Hildreth-Mediator
www.RealEstateMediation.org
Wednesday, May 7, 2008
May 7 2008 Jim W Hildreth Real Estate Mediation Services
The dream of home ownership was a goal of this California single woman a home with acreage
where she could ride her horses, raise her cats and dogs.
She wanted a location within minutes of her animal hospital as she was a new veterinarian.
The sellers had never lived in the home as it was a rental.
The escrow closed and the California dream of home ownership began to sour with the discovery of a septic system that was under the house, the leech lines on the neighbors property, asbestos roofing, leakage in the basement that activated a sump pump 24-7.
Real Estate brokers were involved in both the listing and selling side.
Compounding the problem were missing disclosure statements and the parties were all friends and neighbors.
The buyer became frustrated and sought the attention of an attorney who was out of county due to the small town.
The Attorney who speciality is real estate and business, reviewed the documents and suggested Mediation.
The parties spent over one year attempting to resolve the dispute.
A community hall was available next to the volunteer fire department and Jim W Hildreth Real Estate Mediation Services gathered the parties together, each rolled up their sleeves and each party discussed the real estate dispute.
Jim Hildreth made it clear that the goal and objective of Mediation was to open the lines of communication and to get the parties to listen.
4.5 hours latter the dispute was settled with each of the participants satisfied with the results.
One of the Brokers stated "we tried to do it ourselves and the value today was to have a trained neutral"
Mediation was a value to each of these parties and neighbors.
Jim W Hildreth- Real Estate Mediator
www.RealEstateMediation.org
(209) 536-1103
The dream of home ownership was a goal of this California single woman a home with acreage
where she could ride her horses, raise her cats and dogs.
She wanted a location within minutes of her animal hospital as she was a new veterinarian.
The sellers had never lived in the home as it was a rental.
The escrow closed and the California dream of home ownership began to sour with the discovery of a septic system that was under the house, the leech lines on the neighbors property, asbestos roofing, leakage in the basement that activated a sump pump 24-7.
Real Estate brokers were involved in both the listing and selling side.
Compounding the problem were missing disclosure statements and the parties were all friends and neighbors.
The buyer became frustrated and sought the attention of an attorney who was out of county due to the small town.
The Attorney who speciality is real estate and business, reviewed the documents and suggested Mediation.
The parties spent over one year attempting to resolve the dispute.
A community hall was available next to the volunteer fire department and Jim W Hildreth Real Estate Mediation Services gathered the parties together, each rolled up their sleeves and each party discussed the real estate dispute.
Jim Hildreth made it clear that the goal and objective of Mediation was to open the lines of communication and to get the parties to listen.
4.5 hours latter the dispute was settled with each of the participants satisfied with the results.
One of the Brokers stated "we tried to do it ourselves and the value today was to have a trained neutral"
Mediation was a value to each of these parties and neighbors.
Jim W Hildreth- Real Estate Mediator
www.RealEstateMediation.org
(209) 536-1103
Wednesday, April 30, 2008
Continuing Education
Jim W Hildreth Real Estate Mediator recently updated his skills at the Sacramento Law Libray on Senior Scare: Mortgage Loan Foreclosure.
Jim Hildreth Mediation practice is centered around real estate disputes.
The legal update by attorneys David L Mandel & Ralph Livingstone from Legal Services of Northern California.
The class focussed on Predator Mortgage Lending, common foreclosure rescue scams, mortgage defaults, workouts and loan modifications.
The education update will be valuable both in the Real Estate Brokerage Business and in Real Estate Disputes, especially for Seniors.
Jim W Hildreth-Mediator
http://www.realestatemediation.org/
http://www.realestatemediation.org/
(209) 536-1103
Tuesday, April 29, 2008
ABA Journal- Law News
Great Site for Law News and a Blawg Directory who's focus is
on Real Estate & Property Law
http://www.abajournal.com/blawgs/
Jim W Hildreth-Mediator
www.RealEstateMediation.org
(209) 536-1103
on Real Estate & Property Law
http://www.abajournal.com/blawgs/
Jim W Hildreth-Mediator
www.RealEstateMediation.org
(209) 536-1103
Monday, April 28, 2008
Real Estate Mediation Multiple Parties
Jim W Hildreth has been asked by multiple parties to act as a "Neutral" in a Real Estate Dispute that is based on Non-Disclosure Issues.
The voluntary mediation will include the Sellers, the Sellers Broker, The Buyers, the Buyers broker & agent.
Each party will play a role in the potential settlment and if not settled, Arbitration may be the next avenue and or litigation.
Jim W Hildreth-Mediator
www.RealEstateMediation.org
(209) 536-1103
The voluntary mediation will include the Sellers, the Sellers Broker, The Buyers, the Buyers broker & agent.
Each party will play a role in the potential settlment and if not settled, Arbitration may be the next avenue and or litigation.
Jim W Hildreth-Mediator
www.RealEstateMediation.org
(209) 536-1103
Saturday, April 26, 2008
SF Landlords Denied Bail
PALO ALTO, Calif. -- A Palo Alto landlord couple accused of harassing their tenants in a South of Market District apartment building remains in jail Friday after being denied a bail reduction in San Francisco Superior Court, and was also banned from approaching the tenants or the premises.
Kip Macy, 33, and Nicole Macy, 32, are facing a slew of felony charges, including stalking, residential burglary, conspiracy and grand theft. They were arrested Tuesday in Palo Alto after a six-month investigation by the San Francisco District Attorney's Office.
The couple purchased the Clementina Street building in 2005, according to the district attorney's office.
According to prosecutors, the couple was trying to evict one tenant and in September 2006 allegedly had workers cut support beams underneath the tenant's apartment and cut holes through the floor while the tenant was in the apartment. In addition, they allegedly turned off the tenant's power and cut the phone line.
Other tenants living in another unit of the building allegedly had their apartment burglarized by the couple while they were out, in June 2007, according to prosecutors. In that case, the Macys are alleged to have gone in, removed belongings, stolen cash, and dumped liquid ammonia on their clothing, bedding and electronics equipment. Threatening letters were also allegedly left at their apartment door.
An attorney for the Macys this morning asked Judge Garrett Wong to reduce their bail from $350,000 each to $100,000, arguing the couple had no prior criminal history, except one misdemeanor case involving Kip Macy.
Assistant District Attorney Max Peltz, arguing against a bail reduction, contended, "All the victims and witnesses (in this case) are very afraid for their lives."
Jim W Hildreth-Mediator
www.RealEstateMediation.org
Kip Macy, 33, and Nicole Macy, 32, are facing a slew of felony charges, including stalking, residential burglary, conspiracy and grand theft. They were arrested Tuesday in Palo Alto after a six-month investigation by the San Francisco District Attorney's Office.
The couple purchased the Clementina Street building in 2005, according to the district attorney's office.
According to prosecutors, the couple was trying to evict one tenant and in September 2006 allegedly had workers cut support beams underneath the tenant's apartment and cut holes through the floor while the tenant was in the apartment. In addition, they allegedly turned off the tenant's power and cut the phone line.
Other tenants living in another unit of the building allegedly had their apartment burglarized by the couple while they were out, in June 2007, according to prosecutors. In that case, the Macys are alleged to have gone in, removed belongings, stolen cash, and dumped liquid ammonia on their clothing, bedding and electronics equipment. Threatening letters were also allegedly left at their apartment door.
An attorney for the Macys this morning asked Judge Garrett Wong to reduce their bail from $350,000 each to $100,000, arguing the couple had no prior criminal history, except one misdemeanor case involving Kip Macy.
Assistant District Attorney Max Peltz, arguing against a bail reduction, contended, "All the victims and witnesses (in this case) are very afraid for their lives."
Jim W Hildreth-Mediator
www.RealEstateMediation.org
Thursday, April 24, 2008
SF Couple Accused of Terrorizing Tenants
April 24 2008 Jim W Hildreth Real Estate Mediation
Disputes with Tenants, turn into felony arrest of landlords.
SAN FRANCISCO (AP) - A landlord couple accused of cutting the supports under a renter's San Francisco apartment are facing felony charges in an alleged campaign to terrorize tenants into leaving.
Prosecutors say software engineer Kip Macy, 33, and real estate agent Nicole Macy, 32, told workers to cut the beams supporting the tenant's floor after he successfully fought eviction in court.
The couple also allegedly shut off his electricity, cut his phone line and had workers saw a hole in his living room floor from below.
Authorities arrested the pair Tuesday and charged them with felony stalking, burglary and conspiracy and other counts.
Prosecutors say the landlords broke into another apartment in the six-unit building and poured ammonia on a tenant's clothes, bedding and home electronics.
Jim W Hildreth- Real Estate Mediator
www.RealEstateMediation.org
Disputes with Tenants, turn into felony arrest of landlords.
SAN FRANCISCO (AP) - A landlord couple accused of cutting the supports under a renter's San Francisco apartment are facing felony charges in an alleged campaign to terrorize tenants into leaving.
Prosecutors say software engineer Kip Macy, 33, and real estate agent Nicole Macy, 32, told workers to cut the beams supporting the tenant's floor after he successfully fought eviction in court.
The couple also allegedly shut off his electricity, cut his phone line and had workers saw a hole in his living room floor from below.
Authorities arrested the pair Tuesday and charged them with felony stalking, burglary and conspiracy and other counts.
Prosecutors say the landlords broke into another apartment in the six-unit building and poured ammonia on a tenant's clothes, bedding and home electronics.
Jim W Hildreth- Real Estate Mediator
www.RealEstateMediation.org
April 24th 2008
Jim W Hildreth Real Estate Mediation
Mediation is a voluntary process which requires the parties to focus on resolving their current dispute and preserving their future relationships. The parties must be willing to focus on their present and future needs, and not dwell on who may have been right or wrong. The parties must be open to new options and willing to compromise.
Jim W Hildreth-Mediator
www.RealEstateMediation.org
Mediating the Commercial Lease Dispute
Mediating the Commercial Lease Dispute
--------------------------------------------------------------------------------
by Jerry Slusky
This article has been modified from its original publishing. The original article first appeared in the ACREL Papers Fall 2007 publication.
April 2008
Mediation has been successful in commercial real estate disputes for several reasons. Due to the nature of the real estate market, land or rental space may not have the same value at the end of litigation as it did when the dispute arose. The value of the parties’ interest may be damaged by injunctions, restraining orders or other restrictions imposed by the courts. Depending on the characteristics of the deal, the nature of the real estate and the uses of the property, a variety of disputes can arise from a commercial property lease transaction.
The common sources of commercial property lease disputes are those issues often contested in commercial real estate transactions and the differing interpretations of lease provisions by the landlord or tenant. These generally include:
rent calculations or review,
annual allocation of property tax and common area expenses,
enforcement of operating covenants,
assignment and subletting restrictions,
landlord consent (usually required not to be withheld unreasonably in relation to assignment or subleasing or quality of proposed tenant alterations),
improvements, changes or alterations to the premises,
expansion or reduction of leased premises,
relocation rights,
options to purchase or rights of first refusal and first opportunity,
adequacy of maintenance,
responsibility for repairs,
exclusive use rights or prohibited uses, and
permissible commercial activities or use restrictions (such a claim may involve a third party who is also a tenant).[1]
Outside of the lease disputes noted above, problems can emerge in other areas, including eviction rights and procedures, identifying the premises, establishing commencement and expiration dates and clarifying conditions surrounding the delivery of commercial space.[2]
Benefits of Mediation in the Commercial Lease Dispute
Mediation advances interests rather than decides rights, and requires willingness to compromise by the parties. A mediator’s assistance in a particular dispute may be the catalyst to bring the parties to reconsider the lease in light of their experience with it. In addition, resolving lease disputes efficiently is often vital to third parties including lenders, appraisers, REITs, and other investors.[3]
1. Less Time and Expense than Litigation
Judge Learned Hand said many years ago, “As a litigant, I should dread a lawsuit above all else, other than sickness and death.”[4] Mediation has the potential to save the parties time and money, especially considering commercial real estate mediations can often be completed in a single day at a fraction of the cost of litigation.
The actual cost of mediation depends on the mediator selected. In a typical real estate mediation, a commercial mediator charges from $150 to $500 per hour, similar to the hourly rates charged by attorneys. A real estate mediation usually lasts three to four hours, but, depending on the complexity of the issues, may well take up to a full day (six or eight hours). Generally, the cost for the mediation and the manner in which cost is apportioned among the parties is set out in the Mediation Agreement. Although mediation is not inexpensive, when litigation can cost each party $25,000 to $75,000 or even more, mediation is well worth considering.[5]
2. Creative Solutions of Complex Issues
Commercial property transactions often involve complex documents with detailed covenants, restrictions, and controls specific to the real estate industry. While judges are capable generalists who can learn about a case in a short period of time, there are significant advantages to having disputes resolved by a neutral mediator with specific knowledge of the issues involved and experience negotiating commercial real estate transactions. In evaluating disputes regarding a commercial property lease, “the mediator should consider what is important to a commercial tenant, property owner, property manager, or landlord concerning the cost of acquiring or leasing the space and can identify issues regarding a proposed use or occupancy.”[6]
Using a mediator who is also an experienced real estate professional offers the potential for the parties to reach a creative solution, not contemplated by the contract or lease, benefiting all parties. The solution may simply start with the dispute and look to the relationship more generally. It may consider a variety of options, such as: lengthening or shortening the term of the lease, changing the location or amount of space leased, reconfiguring space, establishing a formula to avoid disputes in future rent reviews, assignment of the lease or subleasing, tenant inducements, or tenant improvements.[7] Such creative solutions are generally not possible or available in the litigation process.[8]
3. Parties Control the Resolution
Mediation is a favored dispute resolution technique because the parties control the outcome. The parties are active participants in the process and are responsible for the agreed upon resolution. When the parties are instrumental in creating the resolution, they are generally more apt to abide by it.
4. Confidentiality
Another benefit of mediation is the proceedings are confidential and the outcome is generally not considered public information. Real estate professionals, developers, contractors, and inspectors place a substantial value on both their time and their reputation.[9] Their future income and success are directly related to both and it is generally not in their best interest to wage a lengthy public litigation if it can be resolved quickly and confidentially.
Confidentiality is also essential to open communication amongst the parties and with the mediator. The fact parties are pursuing mediation usually reflects a level of trust and recognition the adversary is a responsible party who will act fairly and in good faith during the mediation.[10] Parties who might not be comfortable speaking at trail regarding sensitive issues are more inclined to speak during a confidential mediation.[11] Also, the confidential nature of the process gives parties who might not be allowed to speak freely at trial the opportunity to relate their version of the dispute in their own words.[12]
5. Client Education
Mediation also offers the party an invaluable opportunity to understand the strengths and weaknesses of their case.[13] It forces the party to hear and consider the analysis and perspective of an objective third-party. This may force the party to acknowledge hidden weaknesses and be more realistic regarding a possible resolution.[14]
6. Greater Adherence to Final Resolution
Mediation gives the parties the opportunity to control the final resolution of their dispute. Rather than having an outsider, such as a judge, jury or arbitrator, resolve their dispute for them, the parties do it themselves.[15] Gains and losses incurred pursuant to a mediated agreement are more predictable for the parties and the likelihood of satisfaction with the outcome is greatly increased. Mediated agreements tend to hold up over time because the resolution was not imposed upon the parties, but rather crafted by the parties and, therefore, the parties are generally more satisfied with the outcome.[16]
7. Preservation of Relationship
Many commercial real estate experts cite the preservation of business relationships as a major advantage to resolving disputes through mediation rather than lawsuits. Compared to litigation, the nature of mediation is less confrontational, less likely to trigger issues of pride and ego, and more conducive to enabling the parties to work together.[17]
Mediation Clauses
In recent years there has been a growing interest in the use of mediation as a means of resolving real estate disputes rather than using the traditional litigation process. For buyers, sellers, and real estate brokers and agents, including dispute resolution clauses in purchase, sale, or broker contracts removes a dispute from the high-cost litigation system to a more efficient, cost-effective mediation or arbitration process.[18] Typically, the lease will establish either a general right to mediate disputes or will specify mediation for specific issues on which the landlord and tenant have been unable to agree. Although a clause requiring mediation is now found in almost every purchase agreement, many real estate professionals and most clients have little knowledge and experience with mediation.
Conclusion
“A renewed emphasis on creative, privately developed approaches where people take ownership for resolving disputes may provide courts more time and resources to focus on those matters that genuinely require public trial.”[19] Mediation is a voluntary process which requires the parties to focus on resolving their current dispute and preserving their future relationships. The parties must be willing to focus on their present and future needs, and not dwell on who may have been right or wrong. The parties must be open to new options and willing to compromise. Commercial lease dispute are more readily resolved by mediation. For that reason, practitioners should include lease provisions requiring mandatory mediation as a condition prior to seeking judicial resolution.
End Notes
[1] Brian J. Wallace, Resolving Commercial Lease Disputes, at http://www.lawsonlundell.com/resources/
ResolvingCommercialLeaseDisputes.pdf, 2004 (last visited July 23, 2007).
[2] National Arbitration Forum, Resolving Disputes in Commercial Property Sales and Leasing, 3 (October, 2005).
[3] National Arbitration Forum, Resolving Disputes in Commercial Property Sales and Leasing, 4.
[4] Judge Learned Hand, The Deficiencies of Trials to Reach the Heart of the Matter, 3 LECTURES ON LEGAL TOPICS 87, 105 (1926).
[5] Alan R. Seher, Esq., Mediating Real Estate Disputes, at http://www.wwlaw.com/mediate.htm (last visited July 23, 2007)
[6] National Arbitration Forum, Mediating and Arbitrating Commercial Financial Disputes, at http://www.adrforum.com/users/naf/resources/CommercialFinanceWP.pdf, 13-14, December 2005,
[7] Id.
[8] 57 AM JUR Trials 555.
[9] Seher, supra.
[10] Ranking, supra.
[11] 57 AM JUR Trials 555.
[12] Id.
[13] Id.
[14] Id.
[15] Seher, supra.
[16] Id.
[17] Wallace, supra.
[18] National Arbitration Forum, Resolving Disputes in Commercial Property Sales and Leasing, 9.
[19] Pearlstein, at 654 (citing Arthur Pearlstein, The Justice Bazaar: Dispute Resolution through Emergent Private Ordering as a Superior Alternative to Authoritarian Court Bureaucracy, 22 Ohio St. J. on Disp. Resol. 739, 740 (2007)).
Biography
--------------------------------------------------------------------------------
Jerry Slusky is the founder and chairman of Slusky Mediation LLC. Jerry serves local and regional clients in real estate and related matters. Jerry is known for his expertise in real estate planning, zoning, development, financing and leasing. In addition to legal training and experiences, Jerry is trained mediator who has studied with the Nebraska Office of Dispute Resolution. Jerry undertook an intensive mediation training workshop offered by the internationally recognized leader in the field of mediation, ADR Chambers. He has eighty hours of Alternative Dispute Resolution (ADR) training conducted in affiliation with Notre Dame University and the University of Windsor in Toronto. Jerry is also a member of the Association for Conflict Resolution (ACR).
Email Author
Website: www.sluskymediation.com
Additional articles by Jerry Slusky
--------------------------------------------------------------------------------
by Jerry Slusky
This article has been modified from its original publishing. The original article first appeared in the ACREL Papers Fall 2007 publication.
April 2008
Mediation has been successful in commercial real estate disputes for several reasons. Due to the nature of the real estate market, land or rental space may not have the same value at the end of litigation as it did when the dispute arose. The value of the parties’ interest may be damaged by injunctions, restraining orders or other restrictions imposed by the courts. Depending on the characteristics of the deal, the nature of the real estate and the uses of the property, a variety of disputes can arise from a commercial property lease transaction.
The common sources of commercial property lease disputes are those issues often contested in commercial real estate transactions and the differing interpretations of lease provisions by the landlord or tenant. These generally include:
rent calculations or review,
annual allocation of property tax and common area expenses,
enforcement of operating covenants,
assignment and subletting restrictions,
landlord consent (usually required not to be withheld unreasonably in relation to assignment or subleasing or quality of proposed tenant alterations),
improvements, changes or alterations to the premises,
expansion or reduction of leased premises,
relocation rights,
options to purchase or rights of first refusal and first opportunity,
adequacy of maintenance,
responsibility for repairs,
exclusive use rights or prohibited uses, and
permissible commercial activities or use restrictions (such a claim may involve a third party who is also a tenant).[1]
Outside of the lease disputes noted above, problems can emerge in other areas, including eviction rights and procedures, identifying the premises, establishing commencement and expiration dates and clarifying conditions surrounding the delivery of commercial space.[2]
Benefits of Mediation in the Commercial Lease Dispute
Mediation advances interests rather than decides rights, and requires willingness to compromise by the parties. A mediator’s assistance in a particular dispute may be the catalyst to bring the parties to reconsider the lease in light of their experience with it. In addition, resolving lease disputes efficiently is often vital to third parties including lenders, appraisers, REITs, and other investors.[3]
1. Less Time and Expense than Litigation
Judge Learned Hand said many years ago, “As a litigant, I should dread a lawsuit above all else, other than sickness and death.”[4] Mediation has the potential to save the parties time and money, especially considering commercial real estate mediations can often be completed in a single day at a fraction of the cost of litigation.
The actual cost of mediation depends on the mediator selected. In a typical real estate mediation, a commercial mediator charges from $150 to $500 per hour, similar to the hourly rates charged by attorneys. A real estate mediation usually lasts three to four hours, but, depending on the complexity of the issues, may well take up to a full day (six or eight hours). Generally, the cost for the mediation and the manner in which cost is apportioned among the parties is set out in the Mediation Agreement. Although mediation is not inexpensive, when litigation can cost each party $25,000 to $75,000 or even more, mediation is well worth considering.[5]
2. Creative Solutions of Complex Issues
Commercial property transactions often involve complex documents with detailed covenants, restrictions, and controls specific to the real estate industry. While judges are capable generalists who can learn about a case in a short period of time, there are significant advantages to having disputes resolved by a neutral mediator with specific knowledge of the issues involved and experience negotiating commercial real estate transactions. In evaluating disputes regarding a commercial property lease, “the mediator should consider what is important to a commercial tenant, property owner, property manager, or landlord concerning the cost of acquiring or leasing the space and can identify issues regarding a proposed use or occupancy.”[6]
Using a mediator who is also an experienced real estate professional offers the potential for the parties to reach a creative solution, not contemplated by the contract or lease, benefiting all parties. The solution may simply start with the dispute and look to the relationship more generally. It may consider a variety of options, such as: lengthening or shortening the term of the lease, changing the location or amount of space leased, reconfiguring space, establishing a formula to avoid disputes in future rent reviews, assignment of the lease or subleasing, tenant inducements, or tenant improvements.[7] Such creative solutions are generally not possible or available in the litigation process.[8]
3. Parties Control the Resolution
Mediation is a favored dispute resolution technique because the parties control the outcome. The parties are active participants in the process and are responsible for the agreed upon resolution. When the parties are instrumental in creating the resolution, they are generally more apt to abide by it.
4. Confidentiality
Another benefit of mediation is the proceedings are confidential and the outcome is generally not considered public information. Real estate professionals, developers, contractors, and inspectors place a substantial value on both their time and their reputation.[9] Their future income and success are directly related to both and it is generally not in their best interest to wage a lengthy public litigation if it can be resolved quickly and confidentially.
Confidentiality is also essential to open communication amongst the parties and with the mediator. The fact parties are pursuing mediation usually reflects a level of trust and recognition the adversary is a responsible party who will act fairly and in good faith during the mediation.[10] Parties who might not be comfortable speaking at trail regarding sensitive issues are more inclined to speak during a confidential mediation.[11] Also, the confidential nature of the process gives parties who might not be allowed to speak freely at trial the opportunity to relate their version of the dispute in their own words.[12]
5. Client Education
Mediation also offers the party an invaluable opportunity to understand the strengths and weaknesses of their case.[13] It forces the party to hear and consider the analysis and perspective of an objective third-party. This may force the party to acknowledge hidden weaknesses and be more realistic regarding a possible resolution.[14]
6. Greater Adherence to Final Resolution
Mediation gives the parties the opportunity to control the final resolution of their dispute. Rather than having an outsider, such as a judge, jury or arbitrator, resolve their dispute for them, the parties do it themselves.[15] Gains and losses incurred pursuant to a mediated agreement are more predictable for the parties and the likelihood of satisfaction with the outcome is greatly increased. Mediated agreements tend to hold up over time because the resolution was not imposed upon the parties, but rather crafted by the parties and, therefore, the parties are generally more satisfied with the outcome.[16]
7. Preservation of Relationship
Many commercial real estate experts cite the preservation of business relationships as a major advantage to resolving disputes through mediation rather than lawsuits. Compared to litigation, the nature of mediation is less confrontational, less likely to trigger issues of pride and ego, and more conducive to enabling the parties to work together.[17]
Mediation Clauses
In recent years there has been a growing interest in the use of mediation as a means of resolving real estate disputes rather than using the traditional litigation process. For buyers, sellers, and real estate brokers and agents, including dispute resolution clauses in purchase, sale, or broker contracts removes a dispute from the high-cost litigation system to a more efficient, cost-effective mediation or arbitration process.[18] Typically, the lease will establish either a general right to mediate disputes or will specify mediation for specific issues on which the landlord and tenant have been unable to agree. Although a clause requiring mediation is now found in almost every purchase agreement, many real estate professionals and most clients have little knowledge and experience with mediation.
Conclusion
“A renewed emphasis on creative, privately developed approaches where people take ownership for resolving disputes may provide courts more time and resources to focus on those matters that genuinely require public trial.”[19] Mediation is a voluntary process which requires the parties to focus on resolving their current dispute and preserving their future relationships. The parties must be willing to focus on their present and future needs, and not dwell on who may have been right or wrong. The parties must be open to new options and willing to compromise. Commercial lease dispute are more readily resolved by mediation. For that reason, practitioners should include lease provisions requiring mandatory mediation as a condition prior to seeking judicial resolution.
End Notes
[1] Brian J. Wallace, Resolving Commercial Lease Disputes, at http://www.lawsonlundell.com/resources/
ResolvingCommercialLeaseDisputes.pdf, 2004 (last visited July 23, 2007).
[2] National Arbitration Forum, Resolving Disputes in Commercial Property Sales and Leasing, 3 (October, 2005).
[3] National Arbitration Forum, Resolving Disputes in Commercial Property Sales and Leasing, 4.
[4] Judge Learned Hand, The Deficiencies of Trials to Reach the Heart of the Matter, 3 LECTURES ON LEGAL TOPICS 87, 105 (1926).
[5] Alan R. Seher, Esq., Mediating Real Estate Disputes, at http://www.wwlaw.com/mediate.htm (last visited July 23, 2007)
[6] National Arbitration Forum, Mediating and Arbitrating Commercial Financial Disputes, at http://www.adrforum.com/users/naf/resources/CommercialFinanceWP.pdf, 13-14, December 2005,
[7] Id.
[8] 57 AM JUR Trials 555.
[9] Seher, supra.
[10] Ranking, supra.
[11] 57 AM JUR Trials 555.
[12] Id.
[13] Id.
[14] Id.
[15] Seher, supra.
[16] Id.
[17] Wallace, supra.
[18] National Arbitration Forum, Resolving Disputes in Commercial Property Sales and Leasing, 9.
[19] Pearlstein, at 654 (citing Arthur Pearlstein, The Justice Bazaar: Dispute Resolution through Emergent Private Ordering as a Superior Alternative to Authoritarian Court Bureaucracy, 22 Ohio St. J. on Disp. Resol. 739, 740 (2007)).
Biography
--------------------------------------------------------------------------------
Jerry Slusky is the founder and chairman of Slusky Mediation LLC. Jerry serves local and regional clients in real estate and related matters. Jerry is known for his expertise in real estate planning, zoning, development, financing and leasing. In addition to legal training and experiences, Jerry is trained mediator who has studied with the Nebraska Office of Dispute Resolution. Jerry undertook an intensive mediation training workshop offered by the internationally recognized leader in the field of mediation, ADR Chambers. He has eighty hours of Alternative Dispute Resolution (ADR) training conducted in affiliation with Notre Dame University and the University of Windsor in Toronto. Jerry is also a member of the Association for Conflict Resolution (ACR).
Email Author
Website: www.sluskymediation.com
Additional articles by Jerry Slusky
Wednesday, April 23, 2008
Downtown Oakland
One of the positives about doing Mediation is travelling to the community of the dispute. While doing business in downtown Oakland, I took a photo of this classic, that is presently under major remodeling for offices. I believe these prime units are "For Sale"
Wednesday, April 16, 2008
Ohio Division of Real Estate Supports Mediation
April 16 2008 Jim W Hildreth Real Estate Mediator
Ohio Department of Commerce & Division of Real Estate support Mediation and the following link ties into its brochure on Mediation.
http://www.com.ohio.gov/real/docs/real_MediationBrochure.pdf
Jim W Hildreth- Real Estate Mediator
www.RealEstateMediation.org
Ohio Department of Commerce & Division of Real Estate support Mediation and the following link ties into its brochure on Mediation.
http://www.com.ohio.gov/real/docs/real_MediationBrochure.pdf
Jim W Hildreth- Real Estate Mediator
www.RealEstateMediation.org
Tuesday, April 15, 2008
Gay Couples Face Trouble in Divorce & Real Estate
April 15 2008 Jim W Hildreth Real Estate Mediator
Real Estate Disputes involve differnces in partnerships and they do not discriminate between those who are married, gay or "friends", living together. The pain and loss is equal.
What do we do with the investment property that we have owned, or the second home that is out of state, or sharing an office together.
The home that has lost its value in the current real estate climate in 2008.
I once heard that Real Estate is all about "Dreams" and sometimes those dreams are shattered and they involve real estate.
All parties in a dispute, need to be felt heard and the lines of communication is importnant role of a mediator. Being "Neutral" is key.
The following article is educational as often those who are in "gay" relationships face additional legal challenges that are different in each state.
I share the article has having value.
Some gay couples are having trouble obtaining divorces
By RAY HENRY, Associated Press Writer
PROVIDENCE, R.I. - Gay couples had to struggle mightily to win the right to marry or form civil unions. Now, some are finding that breaking up is hard to do, too.
In Rhode Island, for example, the state's top court ruled in December that gays married in neighboring Massachusetts can't get divorced here because lawmakers have never defined marriage as anything but a union between a man and woman. In Missouri, a judge is deciding whether a lesbian married in Massachusetts can get an annulment.
"We all know people who have gone through divorces. At the end of that long and unhappy period, they have been able to breathe a sigh of relief," said Cassandra Ormiston of Rhode Island, who is splitting from her wife, Margaret Chambers. But "I do not see that on my horizon, that sigh of relief that it's over."
Over the past four years, Massachusetts has been the only state where gay marriage is legal, while nine other states allow gay couples to enter into civil unions or domestic partnerships that offer many of the rights and privileges of marriage. The vast majority of these unions require court action to dissolve.
Gay couples who still live in the state where they got hitched can split up with little difficulty; the laws in those states include divorce or dissolution procedures for same-sex couples. But gay couples who have moved to another state are running into trouble.
Massachusetts, at least early on, let out-of-state gay couples get married there practically for the asking. But the rules governing divorce are stricter. Out-of-state couples could go back to Massachusetts to get divorced, but they would have to live there for a year to establish residency first.
"I find that an unbelievably unfair burden. I own a home here, my friends are here, my life is here," said Ormiston, who is resigned to moving to Massachusetts for a year.
It's not clear how many gay couples have sought a divorce.
In Massachusetts, where more than 10,000 same-sex couples have married since 2004, the courts don't keep a breakdown of gay and heterosexual divorces. But Joyce Kauffman, a member of the Massachusetts Lesbian and Gay Bar Association, said probably more than 100 gay divorces have been granted in Massachusetts, and possibly many more.
She said she suspects the divorce rate among gays is lower than that among heterosexual couples, because many of the same-sex couples who got married in Massachusetts had probably been together for years.
Vermont has dissolved 2 percent of the 8,666 civil unions performed there since they became legal in 2000. Those numbers do not include couples who split up in another state.
Chambers and Ormiston wed in Massachusetts in 2004 and filed for divorce in 2006. But the Rhode Island Supreme Court last winter refused to recognize their marriage. That means at least 90 other gay couples from the state who got married in Massachusetts would not be able to divorce in Rhode Island if they wanted to.
Getting a divorce could prove toughest in some of the 40 states that have explicitly banned or limited same-sex unions, lawyers say.
In Missouri, which banned gay marriage in 2001, a conservative lawmaker has urged a judge not to grant an annulment to a lesbian married in Massachusetts.
Oregon started allowing gay couples to form domestic partnerships this year. But to prevent problems similar to those in Massachusetts, lawmakers added a provision that allows couples to dissolve their partnerships in Oregon even if they have moved out of state.
The measure is modeled on California's domestic partnership system and represents a major change in the usual rules governing jurisdiction.
"It's a novel concept in the family law area," said Oregon lawyer Beth Allen, who works with Basic Rights Oregon, a gay rights group.
Same-sex couples can form civil unions in Vermont, Connecticut, New Jersey and New Hampshire. They can enter into domestic partnerships or receive similar benefits in California, Oregon, Maine, Washington, Hawaii and the District of Columbia.
New York does not permit gay marriage, but a judge there has allowed a lesbian married in Canada to seek a divorce. In 2005, Iowa's Supreme Court upheld the breakup of a lesbian couple who entered into a civil union in Vermont.
Some Rhode Island lawmakers are pushing to legalize gay divorce. But Gov. Don Carcieri, a Republican who opposes gay marriage, is against the idea. So are church leaders in the heavily Roman Catholic state.
"Whatever name they want to give to it, it is a recognition of same-sex unions," said the Rev. Bernard Healey, a lobbyist for Catholic Diocese of Providence.
Jim W Hildreth- Real Estate Mediator
http://www.realestatemediation.org/
Real Estate Disputes involve differnces in partnerships and they do not discriminate between those who are married, gay or "friends", living together. The pain and loss is equal.
What do we do with the investment property that we have owned, or the second home that is out of state, or sharing an office together.
The home that has lost its value in the current real estate climate in 2008.
I once heard that Real Estate is all about "Dreams" and sometimes those dreams are shattered and they involve real estate.
All parties in a dispute, need to be felt heard and the lines of communication is importnant role of a mediator. Being "Neutral" is key.
The following article is educational as often those who are in "gay" relationships face additional legal challenges that are different in each state.
I share the article has having value.
Some gay couples are having trouble obtaining divorces
By RAY HENRY, Associated Press Writer
PROVIDENCE, R.I. - Gay couples had to struggle mightily to win the right to marry or form civil unions. Now, some are finding that breaking up is hard to do, too.
In Rhode Island, for example, the state's top court ruled in December that gays married in neighboring Massachusetts can't get divorced here because lawmakers have never defined marriage as anything but a union between a man and woman. In Missouri, a judge is deciding whether a lesbian married in Massachusetts can get an annulment.
"We all know people who have gone through divorces. At the end of that long and unhappy period, they have been able to breathe a sigh of relief," said Cassandra Ormiston of Rhode Island, who is splitting from her wife, Margaret Chambers. But "I do not see that on my horizon, that sigh of relief that it's over."
Over the past four years, Massachusetts has been the only state where gay marriage is legal, while nine other states allow gay couples to enter into civil unions or domestic partnerships that offer many of the rights and privileges of marriage. The vast majority of these unions require court action to dissolve.
Gay couples who still live in the state where they got hitched can split up with little difficulty; the laws in those states include divorce or dissolution procedures for same-sex couples. But gay couples who have moved to another state are running into trouble.
Massachusetts, at least early on, let out-of-state gay couples get married there practically for the asking. But the rules governing divorce are stricter. Out-of-state couples could go back to Massachusetts to get divorced, but they would have to live there for a year to establish residency first.
"I find that an unbelievably unfair burden. I own a home here, my friends are here, my life is here," said Ormiston, who is resigned to moving to Massachusetts for a year.
It's not clear how many gay couples have sought a divorce.
In Massachusetts, where more than 10,000 same-sex couples have married since 2004, the courts don't keep a breakdown of gay and heterosexual divorces. But Joyce Kauffman, a member of the Massachusetts Lesbian and Gay Bar Association, said probably more than 100 gay divorces have been granted in Massachusetts, and possibly many more.
She said she suspects the divorce rate among gays is lower than that among heterosexual couples, because many of the same-sex couples who got married in Massachusetts had probably been together for years.
Vermont has dissolved 2 percent of the 8,666 civil unions performed there since they became legal in 2000. Those numbers do not include couples who split up in another state.
Chambers and Ormiston wed in Massachusetts in 2004 and filed for divorce in 2006. But the Rhode Island Supreme Court last winter refused to recognize their marriage. That means at least 90 other gay couples from the state who got married in Massachusetts would not be able to divorce in Rhode Island if they wanted to.
Getting a divorce could prove toughest in some of the 40 states that have explicitly banned or limited same-sex unions, lawyers say.
In Missouri, which banned gay marriage in 2001, a conservative lawmaker has urged a judge not to grant an annulment to a lesbian married in Massachusetts.
Oregon started allowing gay couples to form domestic partnerships this year. But to prevent problems similar to those in Massachusetts, lawmakers added a provision that allows couples to dissolve their partnerships in Oregon even if they have moved out of state.
The measure is modeled on California's domestic partnership system and represents a major change in the usual rules governing jurisdiction.
"It's a novel concept in the family law area," said Oregon lawyer Beth Allen, who works with Basic Rights Oregon, a gay rights group.
Same-sex couples can form civil unions in Vermont, Connecticut, New Jersey and New Hampshire. They can enter into domestic partnerships or receive similar benefits in California, Oregon, Maine, Washington, Hawaii and the District of Columbia.
New York does not permit gay marriage, but a judge there has allowed a lesbian married in Canada to seek a divorce. In 2005, Iowa's Supreme Court upheld the breakup of a lesbian couple who entered into a civil union in Vermont.
Some Rhode Island lawmakers are pushing to legalize gay divorce. But Gov. Don Carcieri, a Republican who opposes gay marriage, is against the idea. So are church leaders in the heavily Roman Catholic state.
"Whatever name they want to give to it, it is a recognition of same-sex unions," said the Rev. Bernard Healey, a lobbyist for Catholic Diocese of Providence.
Jim W Hildreth- Real Estate Mediator
http://www.realestatemediation.org/
Dispute over sales Price
Jury sides with Realtor in dispute over sales price
Couple claimed they didn't see relevant comps By Inman News, Tuesday, April 15, 2008.
Inman News
A Carlsbad, Calif., real estate broker who showed a couple dozens of properties before they plunked down $1.2 million for a home near a golf course fulfilled his fiduciary duties to his clients and was not negligent, a jury has ruled.
RE/MAX agent Mike Little was sued by his former clients, Marty and Vern Ummel, who claimed they paid $150,000 too much for their home in northern San Diego County. The Ummels claimed Little failed to tell them about similar homes nearby that sold for less.
Little's attorney, David Bright, said the agent was unfairly blamed for the decline in value of the Ummel's house after they purchased it in July, 2005. Bright argued that homes that sold for less than the couples' had features that made them less desirable.
After a two-week trial, a jury found that Little did not breach his fiduciary duty to the Ummels, providing assistance in their three-month house hunt that included advising them on offers they made on other homes, the Voice of San Diego reported.
Bright told the paper that Realtors have become scapegoats for a declining market, and that the trial demonstrated the hard work that real estate professionals perform for their clients.
Vinnie Tracey, President of RE/MAX International, took issue with news reports that the case raised the possibility that courts might hold real estate agents for lower home values.
"This case was never about falling prices or the current real estate market," Tracey said in a statement. "It was simply about the unfounded claims of an individual home buyer, claims that could not be substantiated in any way."
The Ummels, who gained notoriety picketing RE/MAX offices and home listings, filed suit against Little and RE/MAX Associates in July, 2006. The Ummels attorney said the couple has not decided if they will appeal the decision.
Marty Ummel told the Voice of San Diego that the decision sends "a bad message to people about the real estate industry," because it demonstrated there is not the relationship of trust clients expect.
Jim W Hildreth-Mediator
www.RealEstateMediation.org
Couple claimed they didn't see relevant comps By Inman News, Tuesday, April 15, 2008.
Inman News
A Carlsbad, Calif., real estate broker who showed a couple dozens of properties before they plunked down $1.2 million for a home near a golf course fulfilled his fiduciary duties to his clients and was not negligent, a jury has ruled.
RE/MAX agent Mike Little was sued by his former clients, Marty and Vern Ummel, who claimed they paid $150,000 too much for their home in northern San Diego County. The Ummels claimed Little failed to tell them about similar homes nearby that sold for less.
Little's attorney, David Bright, said the agent was unfairly blamed for the decline in value of the Ummel's house after they purchased it in July, 2005. Bright argued that homes that sold for less than the couples' had features that made them less desirable.
After a two-week trial, a jury found that Little did not breach his fiduciary duty to the Ummels, providing assistance in their three-month house hunt that included advising them on offers they made on other homes, the Voice of San Diego reported.
Bright told the paper that Realtors have become scapegoats for a declining market, and that the trial demonstrated the hard work that real estate professionals perform for their clients.
Vinnie Tracey, President of RE/MAX International, took issue with news reports that the case raised the possibility that courts might hold real estate agents for lower home values.
"This case was never about falling prices or the current real estate market," Tracey said in a statement. "It was simply about the unfounded claims of an individual home buyer, claims that could not be substantiated in any way."
The Ummels, who gained notoriety picketing RE/MAX offices and home listings, filed suit against Little and RE/MAX Associates in July, 2006. The Ummels attorney said the couple has not decided if they will appeal the decision.
Marty Ummel told the Voice of San Diego that the decision sends "a bad message to people about the real estate industry," because it demonstrated there is not the relationship of trust clients expect.
Jim W Hildreth-Mediator
www.RealEstateMediation.org
Monday, April 14, 2008
Jim W Hildreth Real Estate Mediation-Mediator
April 14 2008 Jim W Hildreth Real Estate Mediation
One of the oldest and largest questions and answers and free on the internet
is www.AllExperts.com
One can ask any question and a volunteer experts will answer your questions.
Topics such auto's, business, relationships, travel are there for your review, and questions.
One of the sections is Mediation & Arbitration.
Jim W Hildreth Real Estate Mediator volunteers his time to help those who may have a dispute and it help Jim to remain "Sharp" with his writing skills.
The following is a link to the mediation/arbitration site
http://www.allexperts.com/expert.cgi?m=1&catID=908&expID=78132
Jim W Hildreth-Mediator
www.RealEstateMediation.org
One of the oldest and largest questions and answers and free on the internetis www.AllExperts.com
One can ask any question and a volunteer experts will answer your questions.
Topics such auto's, business, relationships, travel are there for your review, and questions.
One of the sections is Mediation & Arbitration.
Jim W Hildreth Real Estate Mediator volunteers his time to help those who may have a dispute and it help Jim to remain "Sharp" with his writing skills.
The following is a link to the mediation/arbitration site
http://www.allexperts.com/expert.cgi?m=1&catID=908&expID=78132
Jim W Hildreth-Mediator
www.RealEstateMediation.org
Home Warranty & Real Estate Disputes
I once marketed a house sale for a Superior Court Judge who told me that he desired to have a home warranty plan in effect after the sale of his Victorian Style Home.
He told me that there was nothing wrong with his home, in was just in case, as he saw personally lots of court cases that involved disputes after the close of escrow.
I told the judge, that I believed in home warranties and we would place a home warranty for unexpected repair expenses.
Six months after escrow, the Judges home that he sold had a defective forced air heating system was in need of repair in the amount of $1,200.
The Trade call of $55.00 was paid by the buyer and the entire $1,200 repairs was paid by the Home warranty company.
I have seen 2-3 needed repairs completed with a year of a post sale.
Home Warranties have a basic plan that cost in $255 range and ultimate upgrades can be in the $355 range.
Mobiles, condominiums, and townhouse coverages are presently $255.
These plans are often split equally between the buyers and sellers.
Why get in a dispute or a law suit over a heat pump, plumbing or a well pump in a rural area.
The following are 2 California Home warranty companies.
www.AHSsales.com American Home Shield
www.firstam.com/warranty First American Home Buyers Protection Warranty
Talk to your Real Estate Broker, attorney, about Home Warranties and the value to all parties in case of a repair or a dispute after close of escrow.
Jim W Hildreth-Mediator
www.RealEstateMediation.org
Kansas City Business and Real Estate Lawyer: Back to Normal Life
Great summary on the Mediation Process.
Kansas City Business and Real Estate Lawyer: Back to Normal Life
Jim W Hildreth-Mediator
www.RealEstateMediation.org
Kansas City Business and Real Estate Lawyer: Back to Normal Life
Jim W Hildreth-Mediator
www.RealEstateMediation.org
Definition of Mobile Home Vs Modular Home
Many homeowners have opted to live in Mobile Homes or Modulars.
Mobile Home Parks are popular for those 55 or over and family parks offer affordability.
A young couple Mr. and Mrs Barley of Jamestown, CA will soon own their first home a Modular located in a family park. The price was under $65,000.
The following is a new Calfornia Law that defines
the difference between the two.
The key to this new law is is the manufacturing date of June 15th 1976.
This new law clarifies the difference between “mobilehomes” and “manufactured homes”, and also creates a new category for “multifamily manufactured home.” The law also changes the permissible scope of work for a General Manufactured Housing Contractor (C-47).
Under existing law, the terms “mobilehomes” and “manufactured homes” are used interchangeably in many California statutes.
Under the new law, the differences between “mobilehomes” and “manufactured homes” are clarified, and a new category of “multifamily manufactured home” is added. This change is intended to provide additional benefits from lenders and others in the housing industry for “manufactured homes” which might not be available for “mobilehomes”.
All single-family factory-constructed housing built on or after June 15, 1976, that is in compliance with the standards of the United States Department of Housing and Urban Development promulgated under the federal National Manufactured Housing Construction and Safety Standards Act of 1974(42 U.S.C. § 5401 et seq.) are "manufactured homes," and not "mobilehomes."
Furthermore, this new law also changes what is the permissible scope of work allowed by a General Manufactured Housing Contractor for these separate categories. Finally, this law also authorizes the Department of Housing and Community Development to adopt regulations relating to commercial modular homes.
This law amends California Health & Safety Code §§ 18000, 18007, 18008, 18008.7 and 18028, and adds California Business & Professions Code § 7026.11. This law also amends the heading of Part 2 of Division 13 of the California Health & Safety Code. The provisions of this new law become effective on January 1, 2008.
Jim W Hildreth-Mediator
www.RealEstateMediation.org
Saturday, April 12, 2008
Mediation for the Consumer & Real Estate Mediation
The following mediation consumer guide is posted on the California Association of Realtors. http://www.car.org/ . It applies to Real Estate Disputes & Mediation.
Its also available in multiple languages.
Introduction
In recent years, our society has seen a dramatic increase in litigation. Turning to the courts to resolve disputes seems to be an almost instinctive reaction these days. However, the sobering reality is that lawsuits can be financially and emotionally draining for the participants, and can even impact our economy over the long-run. While buyers and sellers of real estate usually are able to negotiate away the little disputes that arise in the course of their transactions, sadly those disputes do sometimes end up in lawsuits.
Fortunately, there are alternatives to litigation for resolving disputes. Mediation is one such alternative that is growing rapidly in popularity—one that can dramatically reduce the time and cost (both emotional and financial) of resolving disputes. In fact, many real estate contracts, including those published by C.A.R., now require the parties to mediate many disputes that might arise between them. This memorandum provides a brief overview of some of the issues parties to real estate transactions may confront when deciding whether or not to use mediation as a method for resolving those disputes.
Q 1. What is mediation?
A. Mediation is the term used to describe a relatively informal form of dispute resolution that occurs outside of the court system. In mediation, the parties to the dispute are assisted by a neutral third person called a mediator. The mediator is not empowered to impose a decision on the parties; instead the mediator facilitates discussions and negotiation between the parties with the goal of assisting them in reaching a mutually acceptable settlement of their dispute.
Q 2. How is mediation different from other dispute resolution processes?
A. To understand how mediation is different from other dispute resolution processes, it is helpful to compare it against the various characteristics of the most common dispute resolution processes in use today: negotiation, litigation and arbitration.
Negotiation is simply the process whereby 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.
Litigation is an adversarial process whereby the parties submit evidence to a judge or jury and then rely on the judge or jury to make and impose a binding decision regarding the dispute. Litigation is governed by formal rules and procedures of court and generally is time consuming and expensive. Since it is adversarial, litigation is in effect a contest in which a winner and loser are selected.
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 decision regarding the dispute. However, arbitration is usually private and not conducted in the surroundings, or under the formal rules and procedures, of courts. In order to compel another party to arbitrate a dispute, in most cases the parties must have previously entered into an agreement to arbitrate their disputes.
Mediation is different from litigation and arbitration in many respects. Perhaps the most significant difference is that mediation is a nonadversarial process. That is, the parties do not argue their positions and give decision-making power to a third party. Instead, the mediator’s role is to assist the parties in achieving a mutually agreeable resolution of their dispute.
Q 3. What are some of the advantages of mediation?
A. Mediation is a flexible dispute resolution system that can be used to resolve virtually any type of dispute. Mediation enables the parties to work together and keeps them in control of the decision making process (and usually free from lawyers, judges, arbitrators, or inflexible laws, court rules and procedures). Since mediation is nonadversarial, it also allows the parties to achieve a "win-win" outcome, in contrast 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 and agreements resulting from the mediation are not part of a public record as they are in litigation.
Q 4. How does mediation work?
A. One of the benefits of mediation is that it does not have to follow any particular set of rules or procedures. However, there is such a thing as a "typical" mediation. The typical mediation will begin with the mediator introducing himself or herself to the parties and explaining how the mediation will be conducted. The mediator will then verify that certain documents, such as a confidentiality agreement, have been signed by the parties prior to proceeding with the mediation. Once preliminary matters are handled, the mediator will give the parties an opportunity to express their views of the dispute. Depending on the mediator’s style or the parties’ wishes, the mediator may then separate the parties and meet with them individually. Some mediators do not separate the parties unless a particular unexpressed feeling or issue needs to be dealt with in confidence.
Once the parties have presented their views on the dispute, the mediator will then work with them to identify areas of agreement and disagreement. The mediator does not tell the parties how to resolve their dispute, however. If the parties do reach an agreement, the mediator will assist them in reducing their agreement to writing.
Q 5. Who can be a mediator?
A. California law does not require licensing or certification for mediators. Therefore, in theory, any person can be a mediator. For example, a mediator can be a rabbi or a priest or a next door neighbor. However, most mediators are professionals who have attended training programs, received certifications from a college or a private mediation group, and obtained relevant dispute resolution experience.
Q 6. How much does mediation cost and who pays for it?
A. The cost of mediation depends on a variety of factors. For example, many government agencies sponsor mediation programs for the public, which are available for free or at a nominal cost. However, there are numerous private mediators and mediation services that provide mediation to the public as well. 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.
Q 7. Where do I locate mediators and mediation services?
A. Mediators and mediation services can be located by looking in the local telephone directory (e.g., under "Mediation," "Arbitration," or "Dispute Resolution"), by contacting government agencies such as the California Department of Consumer Affairs, or by asking an attorney or a local bar association (association for attorneys) for referrals. In addition, many mediation providers maintain Internet websites. http://www.realestatemediation.org/
Q 8. What if mediation does not resolve my dispute?
A. While mediation is highly successful, in the event mediation does not resolve a dispute, the parties are free to pursue any other system of dispute resolution available to them. For example, if the parties entered into an arbitration agreement, they could pursue arbitration. In the absence of an arbitration agreement, the parties would likely have to resort to litigation.
It should be noted that even if mediation does not resolve the dispute, it is still an effective way of narrowing areas of dispute, allowing the parties to express their feelings, and enabling future proceedings to be more efficient and focused.
Jim W Hildreth-Mediator
www.RealEstateMediation.org
Its also available in multiple languages.
Introduction
In recent years, our society has seen a dramatic increase in litigation. Turning to the courts to resolve disputes seems to be an almost instinctive reaction these days. However, the sobering reality is that lawsuits can be financially and emotionally draining for the participants, and can even impact our economy over the long-run. While buyers and sellers of real estate usually are able to negotiate away the little disputes that arise in the course of their transactions, sadly those disputes do sometimes end up in lawsuits.
Fortunately, there are alternatives to litigation for resolving disputes. Mediation is one such alternative that is growing rapidly in popularity—one that can dramatically reduce the time and cost (both emotional and financial) of resolving disputes. In fact, many real estate contracts, including those published by C.A.R., now require the parties to mediate many disputes that might arise between them. This memorandum provides a brief overview of some of the issues parties to real estate transactions may confront when deciding whether or not to use mediation as a method for resolving those disputes.
Q 1. What is mediation?
A. Mediation is the term used to describe a relatively informal form of dispute resolution that occurs outside of the court system. In mediation, the parties to the dispute are assisted by a neutral third person called a mediator. The mediator is not empowered to impose a decision on the parties; instead the mediator facilitates discussions and negotiation between the parties with the goal of assisting them in reaching a mutually acceptable settlement of their dispute.
Q 2. How is mediation different from other dispute resolution processes?
A. To understand how mediation is different from other dispute resolution processes, it is helpful to compare it against the various characteristics of the most common dispute resolution processes in use today: negotiation, litigation and arbitration.
Negotiation is simply the process whereby 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.
Litigation is an adversarial process whereby the parties submit evidence to a judge or jury and then rely on the judge or jury to make and impose a binding decision regarding the dispute. Litigation is governed by formal rules and procedures of court and generally is time consuming and expensive. Since it is adversarial, litigation is in effect a contest in which a winner and loser are selected.
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 decision regarding the dispute. However, arbitration is usually private and not conducted in the surroundings, or under the formal rules and procedures, of courts. In order to compel another party to arbitrate a dispute, in most cases the parties must have previously entered into an agreement to arbitrate their disputes.
Mediation is different from litigation and arbitration in many respects. Perhaps the most significant difference is that mediation is a nonadversarial process. That is, the parties do not argue their positions and give decision-making power to a third party. Instead, the mediator’s role is to assist the parties in achieving a mutually agreeable resolution of their dispute.
Q 3. What are some of the advantages of mediation?
A. Mediation is a flexible dispute resolution system that can be used to resolve virtually any type of dispute. Mediation enables the parties to work together and keeps them in control of the decision making process (and usually free from lawyers, judges, arbitrators, or inflexible laws, court rules and procedures). Since mediation is nonadversarial, it also allows the parties to achieve a "win-win" outcome, in contrast 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 and agreements resulting from the mediation are not part of a public record as they are in litigation.
Q 4. How does mediation work?
A. One of the benefits of mediation is that it does not have to follow any particular set of rules or procedures. However, there is such a thing as a "typical" mediation. The typical mediation will begin with the mediator introducing himself or herself to the parties and explaining how the mediation will be conducted. The mediator will then verify that certain documents, such as a confidentiality agreement, have been signed by the parties prior to proceeding with the mediation. Once preliminary matters are handled, the mediator will give the parties an opportunity to express their views of the dispute. Depending on the mediator’s style or the parties’ wishes, the mediator may then separate the parties and meet with them individually. Some mediators do not separate the parties unless a particular unexpressed feeling or issue needs to be dealt with in confidence.
Once the parties have presented their views on the dispute, the mediator will then work with them to identify areas of agreement and disagreement. The mediator does not tell the parties how to resolve their dispute, however. If the parties do reach an agreement, the mediator will assist them in reducing their agreement to writing.
Q 5. Who can be a mediator?
A. California law does not require licensing or certification for mediators. Therefore, in theory, any person can be a mediator. For example, a mediator can be a rabbi or a priest or a next door neighbor. However, most mediators are professionals who have attended training programs, received certifications from a college or a private mediation group, and obtained relevant dispute resolution experience.
Q 6. How much does mediation cost and who pays for it?
A. The cost of mediation depends on a variety of factors. For example, many government agencies sponsor mediation programs for the public, which are available for free or at a nominal cost. However, there are numerous private mediators and mediation services that provide mediation to the public as well. 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.
Q 7. Where do I locate mediators and mediation services?
A. Mediators and mediation services can be located by looking in the local telephone directory (e.g., under "Mediation," "Arbitration," or "Dispute Resolution"), by contacting government agencies such as the California Department of Consumer Affairs, or by asking an attorney or a local bar association (association for attorneys) for referrals. In addition, many mediation providers maintain Internet websites. http://www.realestatemediation.org/
Q 8. What if mediation does not resolve my dispute?
A. While mediation is highly successful, in the event mediation does not resolve a dispute, the parties are free to pursue any other system of dispute resolution available to them. For example, if the parties entered into an arbitration agreement, they could pursue arbitration. In the absence of an arbitration agreement, the parties would likely have to resort to litigation.
It should be noted that even if mediation does not resolve the dispute, it is still an effective way of narrowing areas of dispute, allowing the parties to express their feelings, and enabling future proceedings to be more efficient and focused.
Jim W Hildreth-Mediator
www.RealEstateMediation.org
Friday, April 11, 2008
Real Estate Auction Nightmare
For several years, I have volunteered on http://www.allexperts.com/ in the category of "Arbitration/Mediation"
The following is a question & answer over a deposit dispute with a real estate auction in Phoenix, Az.
Real Estate Auction Nightmare
Question:
I'm a retired Realtor from Washington, now living in gold Canyon, AZ. In October I attended my first real estate auction, an REDC auction in Phx, where I bid on and entered into a purchase and sales agreement. The remaining homes in two subdivisions were auctioned by REDC the developer. I actually did a pre-inspection of 57 but decided I was only interested in two actual model homes, upgraded and ready to go. These homes were showcase homes people toured prior to selecting the floor plan they wanted so the homes were very well done with high end extras. My intention was to live in one of these modest but stylish homes.
The actual models, those used to showcase the various floor plans, sold early in the auction. I sat back waiting for a convenient time to walk out since the two models I was interested in were now sold. As I was about to leave, the auctioneer said that a previously auctioned 4 bedroom, one of the model homes, showcase homes, had returned to the auction pool due to some problem with the first bidder's credit worthiness. Bidding began anew immediately. I honestly did not have the time to go back through the auction brochure but I did know that I would love either of the 4 bedroom models. I won the bid and escrow was opened with my cashier's check for $5250.
The following day, Monday, I drove to video the home. As I checked lot numbers and addresses I realized that the 4 bedrooms were on different lots with different addresses and that I had actually bid on the 3 bedroom model. The brochure had incorrectly disclosed that Lot 50 was a 4 bedroom and the auctioneer had also referred to the property as one of the 4 bedroom Fiesta model homes (again, there were only two.)
I immediately contacted REDC. I had back and forth conversations with several people in the days that followed. Initially they argued that I should have done "my due diligence" and that I had no grounds for backing out. As I moved up the chain of command, the V.P. of Sales at REDC, called and asked if I'd be willing to switch to a 4 bedroom model home, showcase home, in another location but that had not sold at the auction. I agreed to look at it and was shown the property the next day by a salesman for the developer. He said he had heard of my situation and that he thought I was being treated unfairly. He also said that the broker, his boss, "would not do the right thing by me unless made to do the right thing" (he has since resigned.) I went home and agreed to the trade. The V.P. of Sales was encouraged and he told me that he was advising the developer to make the trade. I was very relieved until he called two days later to inform me that the developer would not do the trade after all.
Currently my $5250 sits in escrow. The developer will not respond to any of my correspondence. A lawyer from pre-paid legal, wrote them on my behalf and that letter was also ignored. The contract stipulates binding arbitration as a remedy in case of a contractual dispute but I have no idea how that process happens. The pre-paid legal attorney suggested I sue rather than go the arbitration route. But I can't justify spending $5000 to retrieve my $5000 earnest money deposit.
It's inconceivable to me that I somehow should have known that Lot 50 was not a 3 bedroom and that the brochure was in error as was the auctioneer. After all, neither developer nor REDC caught the mistake prior to the auction. Had the home I bid on been the actual 4 bedroom model offered, I would have gladly closed on the house. Please give me your take on this situation. I'm at a loss as to how to proceed.
Answer:
04/11/2008Patricia- First of all, I'm sorry for your real estate auction nightmare.
As a "Neutral" Mediator, I do not takes sides or positions.
My practice is in California and the standard language would be in a dispute that the parties would "Mediate" and the second phase would be arbitration, if both parties had agreed in the contract.
You may want to take a close look at your contract and see if a "Mediation" clause is built into the contract.You may also want to contact the local Superior Court in Phoenix as your case may be heard in small claims. Often there is a limit as in California its $7,500. If this was the case in Arizona this could possibly cover the deposit of $5,250.
As you mentioned you have used pre-paid legal and have not had a response, and the cost of Arbitration and the risk of binding arbitration, must also be weighed.
Mediation can be cost effective for all parties, and you may want to explore this with the developer.
Often in larger cities there are community based mediation programs, there may be also mediation through the courts or perhaps mediation could occur with a private mediator.
A good source for a private mediator would be to go to http://www.mediate.com and look under Phoenix and real estate Mediation has a specialty.
More than likely your deposit funds will stay in escrow until the dispute is resolved.
Perhaps a face to face meeting with the developer can be of value, explore the "small Claims" path and attempt to mediate prior to arbitration.Litigation may not be in the best interest of all parties.
I wish you the best and please keep me posted. Happy Retirement
Respectfully
Jim W Hildreth-Mediator
www.RealEstateMediation.org
The following is a question & answer over a deposit dispute with a real estate auction in Phoenix, Az.
Real Estate Auction Nightmare
Question:
I'm a retired Realtor from Washington, now living in gold Canyon, AZ. In October I attended my first real estate auction, an REDC auction in Phx, where I bid on and entered into a purchase and sales agreement. The remaining homes in two subdivisions were auctioned by REDC the developer. I actually did a pre-inspection of 57 but decided I was only interested in two actual model homes, upgraded and ready to go. These homes were showcase homes people toured prior to selecting the floor plan they wanted so the homes were very well done with high end extras. My intention was to live in one of these modest but stylish homes.
The actual models, those used to showcase the various floor plans, sold early in the auction. I sat back waiting for a convenient time to walk out since the two models I was interested in were now sold. As I was about to leave, the auctioneer said that a previously auctioned 4 bedroom, one of the model homes, showcase homes, had returned to the auction pool due to some problem with the first bidder's credit worthiness. Bidding began anew immediately. I honestly did not have the time to go back through the auction brochure but I did know that I would love either of the 4 bedroom models. I won the bid and escrow was opened with my cashier's check for $5250.
The following day, Monday, I drove to video the home. As I checked lot numbers and addresses I realized that the 4 bedrooms were on different lots with different addresses and that I had actually bid on the 3 bedroom model. The brochure had incorrectly disclosed that Lot 50 was a 4 bedroom and the auctioneer had also referred to the property as one of the 4 bedroom Fiesta model homes (again, there were only two.)
I immediately contacted REDC. I had back and forth conversations with several people in the days that followed. Initially they argued that I should have done "my due diligence" and that I had no grounds for backing out. As I moved up the chain of command, the V.P. of Sales at REDC, called and asked if I'd be willing to switch to a 4 bedroom model home, showcase home, in another location but that had not sold at the auction. I agreed to look at it and was shown the property the next day by a salesman for the developer. He said he had heard of my situation and that he thought I was being treated unfairly. He also said that the broker, his boss, "would not do the right thing by me unless made to do the right thing" (he has since resigned.) I went home and agreed to the trade. The V.P. of Sales was encouraged and he told me that he was advising the developer to make the trade. I was very relieved until he called two days later to inform me that the developer would not do the trade after all.
Currently my $5250 sits in escrow. The developer will not respond to any of my correspondence. A lawyer from pre-paid legal, wrote them on my behalf and that letter was also ignored. The contract stipulates binding arbitration as a remedy in case of a contractual dispute but I have no idea how that process happens. The pre-paid legal attorney suggested I sue rather than go the arbitration route. But I can't justify spending $5000 to retrieve my $5000 earnest money deposit.
It's inconceivable to me that I somehow should have known that Lot 50 was not a 3 bedroom and that the brochure was in error as was the auctioneer. After all, neither developer nor REDC caught the mistake prior to the auction. Had the home I bid on been the actual 4 bedroom model offered, I would have gladly closed on the house. Please give me your take on this situation. I'm at a loss as to how to proceed.
Answer:
04/11/2008Patricia- First of all, I'm sorry for your real estate auction nightmare.
As a "Neutral" Mediator, I do not takes sides or positions.
My practice is in California and the standard language would be in a dispute that the parties would "Mediate" and the second phase would be arbitration, if both parties had agreed in the contract.
You may want to take a close look at your contract and see if a "Mediation" clause is built into the contract.You may also want to contact the local Superior Court in Phoenix as your case may be heard in small claims. Often there is a limit as in California its $7,500. If this was the case in Arizona this could possibly cover the deposit of $5,250.
As you mentioned you have used pre-paid legal and have not had a response, and the cost of Arbitration and the risk of binding arbitration, must also be weighed.
Mediation can be cost effective for all parties, and you may want to explore this with the developer.
Often in larger cities there are community based mediation programs, there may be also mediation through the courts or perhaps mediation could occur with a private mediator.
A good source for a private mediator would be to go to http://www.mediate.com and look under Phoenix and real estate Mediation has a specialty.
More than likely your deposit funds will stay in escrow until the dispute is resolved.
Perhaps a face to face meeting with the developer can be of value, explore the "small Claims" path and attempt to mediate prior to arbitration.Litigation may not be in the best interest of all parties.
I wish you the best and please keep me posted. Happy Retirement
Respectfully
Jim W Hildreth-Mediator
www.RealEstateMediation.org
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