Monday, December 22, 2008
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
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
Sunday, December 14, 2008
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
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
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
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
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
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.