06-29-2011
Dear Judge Boscoe
Thank you assigning Jim W Hildreth as our mediator. Without his help we
would have never resolved the case.
Jim was very patient with the defendant and extremely conscientious and attentive to me as the plaintiff.
Mediation saved me money and the need for a trial.
What ever your paying Jim Hildreth is not nearly enough. His help was remarkable and irreplaceble.
Plaintiff ED Santa Cruz
Sunday, July 3, 2011
Tuesday, June 28, 2011
Tuolumne County Courthouse Mediation
I have worked for months on a dispute involving co-owners of a property. The mediation brought about many changes and today we reached a settlement agreement and mutual release in mediation. It was a pleasure working with all sides, including Attorney David Hamerslough of San Jose.
Monday, June 13, 2011
Mediation Requirement C.A.R. Independent Contractors between Brokers/Agents
C.A.R. INDEPENDENT CONTRACTOR AGREEMENT REVISED DUE TO RECENT COURT DECISION
C.A.R. will release a revised standard form Independent Contractor Agreement (Form ICA) through zipForm® on or about June 15, 2011. As between brokers and their salespersons and broker associates, the ICA will now mandate mediation for any disputes that may arise and, if mediation fails, the ICA recommends, but does not require, arbitration at the local Association of REALTORS® (AOR). C.A.R. revised the ICA because a previous version requiring arbitration of disputes at the AOR, absent more, was recently deemed unenforceable in the Fourth District as discussed below (Wherry v. Award, Inc. (2011) 192 Cal.App.4th 1242, 123 Cal. Rptr.3d 1, review denied (April 27, 2011)). This case does not impact the overwhelming majority of arbitrations which are those between REALTORS® of different firms. It also does not impact the arbitration clause in the C.A.R. Residential Purchase Agreement, Residential Listing Agreement, and other C.A.R. forms.
C.A.R. will release a revised standard form Independent Contractor Agreement (Form ICA) through zipForm® on or about June 15, 2011. As between brokers and their salespersons and broker associates, the ICA will now mandate mediation for any disputes that may arise and, if mediation fails, the ICA recommends, but does not require, arbitration at the local Association of REALTORS® (AOR). C.A.R. revised the ICA because a previous version requiring arbitration of disputes at the AOR, absent more, was recently deemed unenforceable in the Fourth District as discussed below (Wherry v. Award, Inc. (2011) 192 Cal.App.4th 1242, 123 Cal. Rptr.3d 1, review denied (April 27, 2011)). This case does not impact the overwhelming majority of arbitrations which are those between REALTORS® of different firms. It also does not impact the arbitration clause in the C.A.R. Residential Purchase Agreement, Residential Listing Agreement, and other C.A.R. forms.
Friday, June 3, 2011
Tears fall at a Mediation
The Historic Court House with marble floors and old fashioned wrought iron was the backdrop for a lawsuit that involved landlord & tenant.
The two men stared and would not look at one another, the court called out their names. They both responded with a yes and what caught my eye as the court appointed mediator, is they shared the last name.
The crowded court room was silent and the voice of the judge said the landlord tenant would be going to mediation and if it did not work out a trial would be that day.
I was assigned that mediation, and I asked the silent men to follow me to the jury assembly room.
I introduced myself and asked if the were related?.
The response in a muffled tones were they we were father and son.
Father had previously evicted his son and received a judgment from another judge, today was trial for damages for the maximum allowed in a California Small Claims of $7,500
The father and son each told a story, demanding of money and the other willing to go to trial.
Something told me there were issues deeper than the demand of $7,500.
I suggested that I would like to share time with each of them and their our conversation's would be confidential.
As time passed, the landlord tenant issue was only the tip of the iceberg, and issues of anger, resentment, trust, control, love, the introduction and desire to see for the first time a grandchild by a grandfather surfaced.
Memories of camping and fishing trips in years past. A failed marriage.
The father burst out with tears flowing, that it was not about the money, but wanting a son to be in his life, as he loved him.
He wanted only a telephone call, a birthday card and a dream of seeing a grandchild.
I took a deep breath and my own tears began to flow, the 2nd time in my 5 year mediation career.
The son wanted to trusted and not be controlled. He wanted his independence.
Both new that family was important but neither side would budge.
Little by little, as the neutral, I began a process of building trust and offering empathy.
I took a risk and as the mediator I rose from my chair and asked them to hold my hand and offered that at that moment it was a time to start the healing process, I then asked them to shake and touch each others hand with a handshake.
The two joined, hand to hand, father to son, son to father.
In the mediation the father dropped his lawsuit and the written agreement between one another was stated , "Father and Son have begun a healing process to preserve a family relationship".
Upon return to the court, the judge reached out to both father and son and accepted the settlement, knowing that new beginnings were made possible and family unity had the greater value than a judgment.
As a the mediator, my own tears flowed with the emotion of a family dispute that went deeper and beyond a landlord tenant dispute.
I am glad that I played a role as a mediator in being apart of bringing a family together.
Mediation is a valued alternative to litigation.
Jim W Hildreth is a California based mediator who's focus is Real Estate Disputes.
The two men stared and would not look at one another, the court called out their names. They both responded with a yes and what caught my eye as the court appointed mediator, is they shared the last name.
The crowded court room was silent and the voice of the judge said the landlord tenant would be going to mediation and if it did not work out a trial would be that day.
I was assigned that mediation, and I asked the silent men to follow me to the jury assembly room.
I introduced myself and asked if the were related?.
The response in a muffled tones were they we were father and son.
Father had previously evicted his son and received a judgment from another judge, today was trial for damages for the maximum allowed in a California Small Claims of $7,500
The father and son each told a story, demanding of money and the other willing to go to trial.
Something told me there were issues deeper than the demand of $7,500.
I suggested that I would like to share time with each of them and their our conversation's would be confidential.
As time passed, the landlord tenant issue was only the tip of the iceberg, and issues of anger, resentment, trust, control, love, the introduction and desire to see for the first time a grandchild by a grandfather surfaced.
Memories of camping and fishing trips in years past. A failed marriage.
The father burst out with tears flowing, that it was not about the money, but wanting a son to be in his life, as he loved him.
He wanted only a telephone call, a birthday card and a dream of seeing a grandchild.
I took a deep breath and my own tears began to flow, the 2nd time in my 5 year mediation career.
The son wanted to trusted and not be controlled. He wanted his independence.
Both new that family was important but neither side would budge.
Little by little, as the neutral, I began a process of building trust and offering empathy.
I took a risk and as the mediator I rose from my chair and asked them to hold my hand and offered that at that moment it was a time to start the healing process, I then asked them to shake and touch each others hand with a handshake.
The two joined, hand to hand, father to son, son to father.
In the mediation the father dropped his lawsuit and the written agreement between one another was stated , "Father and Son have begun a healing process to preserve a family relationship".
Upon return to the court, the judge reached out to both father and son and accepted the settlement, knowing that new beginnings were made possible and family unity had the greater value than a judgment.
As a the mediator, my own tears flowed with the emotion of a family dispute that went deeper and beyond a landlord tenant dispute.
I am glad that I played a role as a mediator in being apart of bringing a family together.
Mediation is a valued alternative to litigation.
Jim W Hildreth is a California based mediator who's focus is Real Estate Disputes.
Saturday, May 28, 2011
What was home owner thinking?
What were homeowners thinking ? Homeowner Assoc/Homeowner have a dispute involving violations of CCR's. Mediation brings about settlement waiving attorney fee's, if homeowner agrees to a 30, 60, 90
plan for compliance. Home owner refuses to sign agreement, time has expired and Association gave home owner a carrot to comply waiving legal fees $20k+. Fee's now exceed $40k and homeowner association will now settle assuming homeowner can show compliance and legal fee's paid. Homeowner was pro-per. As the mediator, we reached a full settlement, the next step may be a costly trial that will exceed 100K.
Monday, May 16, 2011
Real Estate Deposit Dispute
Are you aware with a client who is having a dispute over a real estate deposit?
Cost effective mediation may be the answer for resolve.
Cost Saving, Confidential and experienced in Real Estate.
Kindly
Cost effective mediation may be the answer for resolve.
Cost Saving, Confidential and experienced in Real Estate.
Kindly
Jim W Hildreth Mediator
Real Estate Mediation Services
950 S Washington St
Sonora, CA. 95370
(209) 536-1103
248 Third St, Suite 614
Oakland, CA. 94607
(510) 647-3600
Wednesday, May 11, 2011
Advantages to Mediation
Advantages to Mediation v Arbitration or Litigation From First Tuesday
Mediation: a viable alternative
Rather than immediately resorting to the costly and adversarial process of arbitration or litigation, in recent years the trend in real estate sales transactions indicates disputants favor the use of mediation. [For more information regarding mediation, see the August 2008 first tuesday article, Mediation: best, faster dispute resolution.]
Litigation is, at its heart, a deeply adversarial process which ends with a spurned “loser” who can then move on to draw out the dispute in a time-consuming and costly appeals process. Arbitration is also an adversarial process that functions similarly, shunting the disputants into “winner” and “loser” roles with feet set in concrete.
Only with mediation’s familiar arena of offer and counteroffer between the feuding parties in a face-to-face environment, as nurtured by the mediator, do disputants have the ability to come to a mutually crafted and agreed-to solution — the main advantage mediation has over actions in litigation or arbitration where one party wins and one loses (or both lose).
The extremely low cost of mediation, in terms of time and money, has been deemed another major benefit of the process. Consider as part of the cost the time involved in mediation versus the time involved in litigation or arbitration. Litigation can be drawn out for years with various pre-trial, discovery and appeals processes, all while attorneys’ billable hours soar. Arbitration may also last years and, in addition to contracted-for payment of the winner’s attorney fees, the loser is responsible for paying the arbitrator’s costs and fees.
However, mediation is typically a quick process lasting a few hours over a period of a few weeks, depending on the number of disputants and the complexity of the dispute. There are no lengthy waits for court hearings and no need for discovery or witnesses since the resolution is in the hands of the disputants themselves, again as encouraged and moved along by the mediator.
In addition to these benefits, the use of mediation also provides a solution to a dispute without adding or falling subject to the backlog of cases burdening the legal system.
Mediation does have its limits. In real estate matters, mediation is limited to resolving disputes involving buyers and sellers. Landlord-tenant disputes and trust deed defaults are largely based on very specific statutory requirements for performance which are either satisfied or unsatisfied, leaving little room for discussion. Mediation is a tool best used by disputants in sales of property and agency disputes.
In pursuit of justice
If mediation is not possible, disputants seeking a fair and final decision need to prepare for their only real option: litigation. There is no rational reason to risk an arbitrator making an erroneous decision barred from judicial review when a sound judgment held accountable under the law can be obtained for about the same cost and in nearly the same amount of time.
The responsibility of educating buyers and sellers of real estate about the toxicity of arbitration rests on the shoulders of their agents and brokers, who must advise their client on the consequences of initialing the provision and triggering its enforceability. Brokers who require their agents to use the trade union’s purchase agreement must make a point of providing their client with the full extent of their knowledge regarding the risks of arbitration.
Aside from the multitude of arguments against arbitration, one simple fact prevails: rather than expeditiously resolving disputes, arbitration creates disputes. Consider this axiom of business conduct: if an aspect of real estate sales transactions is known to create disputes, especially when that aspect was designed to limit them, it must be avoided.
Future homebuyers can be shepherded past the snare of arbitration by the gatekeepers of real estate who fully understand the danger of initialing and thus agreeing to the binding provision. As the devastating wounds of the Great Recession begin to heal in this plateau recovery and the California real estate market arms itself to abide by broader consumer protection laws, homebuyers will soon resent any failure to disclose the risks involved in arbitration. [For more information regarding the new real estate paradigm, see the May 2010 first tuesday article, Looking through the window towards recovery: a real estate paradigm shift — Part I and Part II.]
Email (required but will not be published)
Mediation: a viable alternative
Rather than immediately resorting to the costly and adversarial process of arbitration or litigation, in recent years the trend in real estate sales transactions indicates disputants favor the use of mediation. [For more information regarding mediation, see the August 2008 first tuesday article, Mediation: best, faster dispute resolution.]
Litigation is, at its heart, a deeply adversarial process which ends with a spurned “loser” who can then move on to draw out the dispute in a time-consuming and costly appeals process. Arbitration is also an adversarial process that functions similarly, shunting the disputants into “winner” and “loser” roles with feet set in concrete.
Only with mediation’s familiar arena of offer and counteroffer between the feuding parties in a face-to-face environment, as nurtured by the mediator, do disputants have the ability to come to a mutually crafted and agreed-to solution — the main advantage mediation has over actions in litigation or arbitration where one party wins and one loses (or both lose).
The extremely low cost of mediation, in terms of time and money, has been deemed another major benefit of the process. Consider as part of the cost the time involved in mediation versus the time involved in litigation or arbitration. Litigation can be drawn out for years with various pre-trial, discovery and appeals processes, all while attorneys’ billable hours soar. Arbitration may also last years and, in addition to contracted-for payment of the winner’s attorney fees, the loser is responsible for paying the arbitrator’s costs and fees.
However, mediation is typically a quick process lasting a few hours over a period of a few weeks, depending on the number of disputants and the complexity of the dispute. There are no lengthy waits for court hearings and no need for discovery or witnesses since the resolution is in the hands of the disputants themselves, again as encouraged and moved along by the mediator.
In addition to these benefits, the use of mediation also provides a solution to a dispute without adding or falling subject to the backlog of cases burdening the legal system.
Mediation does have its limits. In real estate matters, mediation is limited to resolving disputes involving buyers and sellers. Landlord-tenant disputes and trust deed defaults are largely based on very specific statutory requirements for performance which are either satisfied or unsatisfied, leaving little room for discussion. Mediation is a tool best used by disputants in sales of property and agency disputes.
In pursuit of justice
If mediation is not possible, disputants seeking a fair and final decision need to prepare for their only real option: litigation. There is no rational reason to risk an arbitrator making an erroneous decision barred from judicial review when a sound judgment held accountable under the law can be obtained for about the same cost and in nearly the same amount of time.
The responsibility of educating buyers and sellers of real estate about the toxicity of arbitration rests on the shoulders of their agents and brokers, who must advise their client on the consequences of initialing the provision and triggering its enforceability. Brokers who require their agents to use the trade union’s purchase agreement must make a point of providing their client with the full extent of their knowledge regarding the risks of arbitration.
Aside from the multitude of arguments against arbitration, one simple fact prevails: rather than expeditiously resolving disputes, arbitration creates disputes. Consider this axiom of business conduct: if an aspect of real estate sales transactions is known to create disputes, especially when that aspect was designed to limit them, it must be avoided.
Future homebuyers can be shepherded past the snare of arbitration by the gatekeepers of real estate who fully understand the danger of initialing and thus agreeing to the binding provision. As the devastating wounds of the Great Recession begin to heal in this plateau recovery and the California real estate market arms itself to abide by broader consumer protection laws, homebuyers will soon resent any failure to disclose the risks involved in arbitration. [For more information regarding the new real estate paradigm, see the May 2010 first tuesday article, Looking through the window towards recovery: a real estate paradigm shift — Part I and Part II.]
Email (required but will not be published)
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