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.

(209) 536-1103

Tuesday, April 29, 2008

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
(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

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

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

Mediating the Commercial Lease Dispute

Downtown Oakland
Originally uploaded by JimHildreth
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.


“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

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 (last visited July 23, 2007)

[6] National Arbitration Forum, Mediating and Arbitrating Commercial Financial Disputes, at, 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)).



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).

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Additional articles by Jerry Slusky

Wednesday, April 23, 2008

Downtown Oakland

Downtown Oakland
Originally uploaded by JimHildreth
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.

Jim W Hildreth- Real Estate Mediator

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

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

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

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

Jim W Hildreth-Mediator

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. American Home Shield 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

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

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

Saturday, April 12, 2008

Mediation for the Consumer & Real Estate Mediation

The following mediation consumer guide is posted on the California Association of Realtors. . It applies to Real Estate Disputes & Mediation.

Its also available in multiple languages.

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.

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

Friday, April 11, 2008

Real Estate Auction Nightmare

For several years, I have volunteered on 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

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.

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 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


Jim W Hildreth-Mediator

Tuesday, April 8, 2008

Amador County Superior Court Appoints Mediation Panel

April 8 2008 by Jim W Hildreth

Jim W Hildreth Mediator has been selected to a new Civil Mediation Panel by the Superior Court of the State of California and County of Amador.

The county seat is the city of Jackson.

Many Superior Courts are adopting Civil Mediation Panels and the County of Marin, North of San Francisco has a successful program with a high degree of settlements.

Jim W Hildreth focus is on issues involving real property or real estate.

Jim W Hildreth-Mediator

Thursday, April 3, 2008

Real Estate Mediation

Real Estate Mediation by Jim W Hildreth April 3 2008

I'm often asked what is "Real Estate Mediation"?

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

Our Mediating services offer services to buyers, sellers, agents & brokerages.

Our goal is to offer to all parties Compassion-Leadership- and reach for Consesus.


Wednesday, April 2, 2008

Finding Problems, Finding Faults

By Joannie Cleaver, Journal Sentinel, Milwakee March 2008

It took three years for Milwaukee schoolteacher Antoine Gee to tidy his credit scores to qualify for a mortgage; eight months for him to find the brick ranch he bought in November; and one day to discover that the supposedly solid garage had a rotting foundation.

On a recent freezing day, moisture seeped through the black-painted concrete blocks that support the vermin-chewed wood frame. Last fall, Gee says, puddles crept over the cracked concrete, even in dry weather.

And don't get him going about the huge rats' nests he found between the beams and the cost and hassle of driving out the infestation.

"There's a lot they didn't disclose," says Gee of the buyers. The property condition report - a state-mandated list of known problems that sellers are required to give buyers - didn't mention any of the problems, he adds.

Even the home inspector he hired says he's never seen anything like it.

The garage was full of debris and wood-shop equipment on the day that Dan Rouse inspected it. Operating as Complete Inspection Service, he has been a home inspector for 12 years.
The sellers had their fingers crossed that the clutter would cover up the problems, he thinks. "They probably knew something was wrong," he says.

buyers vs. sellers

As the housing market stumbles through the first quarter, tensions are growing between buyers and sellers.

Jim W Hildreth-Mediator

Tuesday, April 1, 2008

Non-Disclosure Issues- Potential Litigation

This Old House by Jim W Hildreth April 1 2008

The Old House sits at the top of the hill, affording good views of the Mother Lode Community of Sonora, CA a Gold Rush City.

The home is for sale and access to the home is parking on the city street and climbing rows of stairs.

A potential buyer made an appointment to preview the home with a Buyers Broker.

The first words from the buyer was "the
retaining wall that supports the parcel of land is slipping"

Upon further inspection the wall extended 8" from its original support and is sloping towards the city street.

With potential heavy rains, the potential for a wall collapse is evident.

The buyers Broker asked the listing Broker of any disclosures and the response was the agent had never noticed the buckled wall.

California civil code 2079 make it very clear that on one to four residential property include a
visual inspection to observe conditions which might affect the market value of the property and then entering those observation on Property (Transfer) Disclosure Statement.

The Buyers Broker would have the same obligations.

If the agents missed these disclosures, a future disaster for liability exposure would go beyond the potential collapsed retaining wall.

It is the wise agent, who will make a visual inspection and disclose.

Jim W Hildreth-Mediator
(209) 536-1103

A Diability and a Dispute

A Disability, and a Dispute

March 30, 2008

THE first thing that Barbara Gutmacher Girard asked about before signing a contract two years ago to buy a condominium at the Plaza Hotel was access for the handicapped, she recalled last week.
The question stems from a dispute that developed after Ms. Girard and her elderly mother, Rose Gutmacher, leased adjoining suites, for a total of $37,500 a month, at the Waldorf-Astoria Towers, the exclusive upper floors of the famed hotel on Park Avenue at 49th Street.
After moving in, in November 2003, the women found themselves caught up in disputes with the hotel management. The hotel had offered them a long-term lease in the tower but then abruptly withdrew the offer, raising the rent to $63,690 a month. The hotel asserted that Ms. Girard’s mother, who uses a wheelchair, created problems by repeatedly calling guest services for help in locating her daughter or a health aide, according to press accounts at the time.
They moved a few blocks away to the Towers, at the New York Palace Hotel, on Madison Avenue near 50th Street. In January 2005, they filed an $8 million discrimination lawsuit against the Waldorf, claiming violations of laws protecting the disabled.
In late February, a settlement was reached. The terms were confidential, and Ms. Girard’s lawyer, Marshal B. Bellovin, declined to discuss them, as did officials at the Waldorf.
But a handwritten stipulation in the court file indicated that though there was no finding of fault, the Waldorf agreed to pay $15,000 to a charity, the International Committee Against Mental Illness. In addition, the hotel agreed to install a curb cut near an entrance to the Waldorf on East 50th Street, and to inspect a ramp to make sure that it “supports an individual seated in a wheelchair” and that it “does not sway from side to side.”
A year after the suit was filed, Ms. Girard signed a contract on a condominium at the Plaza, which is on Fifth Avenue at the foot of Central Park. A couple of weeks after the suit was settled, she closed on a sprawling 1,760-square-foot two-bedroom on the 18th floor. The price was $4.7 million, according to property records filed last week.
But Ms. Girard said in a recent interview that in the last two years, she and her mother had become so comfortable at the New York Palace that they had not yet decided when and if they were going to move into their new condo.

Jim W Hildreth-Mediator