Wednesday, April 25, 2007

Mediation Can Work

I thought I would share a recent real estate mediation experienceA section 8 housing unit in had a long term tenant who had never been in trouble. He is a single dad with 2 small children.
He loves his music and has he stated his music at times can be loud. By his own admission he likes to drink and he has had a DUI. He had a party, he went to bed and the party continued.

The Police Dept showed up and under a probation search found 10 pills on the flloor of a illegal narcotic. No arrest were made due to the fact of lack of ownership of the pills.

Landlord served notice to tenant for violation of park rules for zero tolerance for drugs.

Landlord wants tenant to vacate, if tenant vacates under eviction andhe then looses his section eight benefits.

He works and goes to college partime while being a fulltime dad.Tenant made some bad judgements with alcohol, and perhaps the crowd that he invited to his home, but he faced eviction due to the wriiten policy.

It was his domicile .Landlord would continue with eviction and tenant and family faced the streets .

Mediation brought out a solution that all parties agreed to. The landlord would withdraw the eviction, the tenant would give a 30 day notice to vacate and since this would not be a eviction, the tenant could keep his Section8 benefits and move to a new location with a fresh start.

Perhaps there are many other ideas and solutions to this dilema and conflict.

In my mind, we had a win-win

Jim W Hildreth Real Estate mediator

Failure of Mediation

I recieved this from an attorney friend who failed in a mediation.I mediated a divorce case one time...bonds, stocks, real estate, etc. ect.We got down to signing papers and the husband assumed custody of the dog. The wife insisted on having it.We failed to settle the case!

Landlord /Tenant Dispute & Sexual Abuse

In the past year I have been involved with multiple Landlord/tenant issues as a mediator.

Tomorrow I have been asked to mediate a landlord/tenant issue where the tenant has been
asked to vacate to due to his sexual advancements and indecent behavior to fellow
tenants and exposure in front of children.

The landlord has a zero tolerance for any illegal activity, illegal sexual favors in exchange for money.

It appears from the brief that the lanlord does have a good cause for termination.

I must remind myself as a mediator to be neutral, objective and listen carefully to the tenant.

To listen to all sides.

Tomorrow will be a "Good test"

The greater test will be my own trauma from childhood abuse by a neighbor.

Jim W Hildreth Real Estate Mediator

Monday, April 23, 2007

Gibson Case Advantages To Mediate

Gibson Case Advantages To Mediate

The following California case shows another advantage to Real Estate Mediation to the collection of attorney fee's to the prevailing party. The case clearly shows that to collect the prevailing parties attorney fees, mediation must occur first:

Van Slyke v. Gibson: Under C.A.R.'s mediation and attorney fees clauses, the prevailing party in any action is entitled to reasonable attorney fees and costs, except when that party fails to attempt mediation or refuses to mediate before commencing an action.

In this case, a potential buyer wrote an offer using the C.A.R. Residential Purchase Agreement.

The sellers made a counter offer requiring the buyer, upon acceptance, to provide written confirmation from his lender that it would lend on the property, which was a large acreage with a modular home.

The buyer accepted the counter offer, but never provided the confirmation letter and his deposit check had insufficient funds. The transaction never closed.W hen the sellers then accepted another buyer's offer, the first buyer sued for breach of contract and specific performance.

The sellers filed a cross-complaint for wrongful interference with an economic relationship, but later dismissed their cross-complaint. Before filing the cross-complaint, the sellers' attorney allegedly telephoned to request mediation, but the buyer denied this happened.

The parties went to trial on the buyer's specific performance claim and the sellers won. As the prevailing party, the sellers were awarded $94,974 in attorney fees and costs for defending the specific performance claim.

The buyer appealed the $94,974 award, arguing that the sellers failed to propose mediation before filing their cross-complaint.

The buyer lost on appeal. The appellate court in Van Slyke pointed out that the $94,974 attorney fees and costs were incurred for defending against the buyer's claim, not for pursuing the sellers' cross-complaint.

Moreover, the court held that, as stated in the C.A.R. agreement, seeking mediation is a prerequisite for the recovery of attorney fees by the party who commences the action, not the party defending against the action.

Finally, the court awarded the sellers their attorney fees incurred for the appeal.

Jim W Hildreth- Real Estate Mediator

Advanced Education

Having completed the UC Berkeley 40 hour mediation program, my goal has been to continue my mediation education and training and I met a 2007 goal to take Advanced Mediation Techiques.

The 24 hours of training was taught by Stephen Rosenberg and well known trainer in the mediation fiield.

The course will allow mediation within the Superior Courts of Amador & Calaveras Countiies.

My focus will deal with real estate issues.

Jim W Hildreth Mediator

Sunday, April 22, 2007

Neighbor against neighbor

The neighbors used to talk, but after a series of disputes over fencing, an easement and the lack of access, the level of frustration and non- communication became common ground.

They shared the same roadway and would have to pass one another.

The feud reached the scale of physical threats.
The only option was a lawsuit.

Attorneys were retained and litigation was started.

The Superior Court suggested mediation. The neighbors were reluctant and would never allow face-to-face meetings.

The attorneys agreed to a mediator and the parties agreed to give it a chance. The attorneys had the experience that it was more than likely this litigated case would go to trial.

The mediation took place, positions were discussed openly and within 3.5 hours both neighbors reached a written settlement.

Joy filled the room, the neighbors shook each others hands and openly stated they could be friends again.

Mediation allows the parties to "work" for a common benefit.

A "neutral" was valuable and the real estate mediation was a success.

Jim W Hildreth Real Esate Mediator

Real Estate Mediation Advantages

Real Estate Mediation Advantages

John and David had purchased a home in Berkeley. They were in a committed relationship, would split all expenses and were approved for a $600,000 mortgage. Their plan was to sell the home within two years.

Within months, their relationship went sour and they faced a relationship disaster and a financial crisis.

Beth and Susan entered into a partnership as a real estate broker and agent to offer property management services.

Susan became sick and the business relationship failed. Susan wanted $40,000 for settlement.

Two real estate Brokers and agents disclosed a home had dual pane windows. The escrow closed and the new buyer discovered single pane windows and sued for non-disclosure.

Real Estate Disputes do occur, and these disputes can be costly and a major stress to all parties including buyer, seller, real estate agents, landlords, tenants and the courts.

In California most real estate contracts allow for Mediation, And Arbitration, prior to litigation.
Mediation is an alternative dispute resolution process of exploring solutions and negotiating mutually acceptable resolutions.

Unlike the legal process, mediation allows the parties to Decide the fairest and most reasonable solution.

Participation in mediation will not waive your rights to later pursue the matter legally.

Mediation is a process in which a neutral person-the mediator- helps parties reach a settlement to their dispute by opening lines of communication, objectively evaluating the case, identifying the parties' real needs and finding solutions to address those needs.

The advantages to mediation are cost, confidentiality, fairness and the potential for resolution.
After 30 years in the real estate brokerage business, seeing all phases of real property issues, the concept of mediation was appealing.

Training at UC Berkeley, actual cases in small claims court and mediation, both in the public and private sector, have led to a mediation practice that that is exclusive to real estate issues.

John and David had many more issues than the value of a Bay Area home worth $775,000.
Issues of trust, lack of communication and the individual perception in dealing with feelings vs. factual information.

The mediator's role of having a long-term background in real estate was valuable to all parties, especially when questions arose about mortgages, present and future values, discounts and an understanding of the present real estate market.

David stated, a Realtor-Mediator "added value, credibility and trust in helping me form a decision"

Within 3.5 hours, a written settlement occurred and they left the mediation shaking hands.

Beth and Susan and her attorney invested 4 hours in their mediation session. The consensus in the end was a deadlock and all parties agreed that binding arbitration would be the next phase.

The attorney for Susan stated, "As a mediator you did an outstanding job of keeping us on a level of open communication, fairness and being neutral. We felt respected."

The non-disclosure issue over dual pane windows made headway as all parties agreed that the non-disclosure issues were not one of fraud, but an honest mistake.

The Realtor-mediator played an important role in creating an open dialog between buyer, seller and agents.

The conflict was settled and all parties reached a written agreement within 2 hours.

Many communities offer alternative dispute resolution, including local associations of Realtors. The San Diego Association of Realtors Is well-recognized in panels that mediate real estate disputes.

The legal community offers mediation and arbitration and privately mediators who specialize in areas, such as family law, probate, construction defects and real estate.

Submitted by Jim W Hildreth-Realtor Real Estate Mediator