Mediate - Don't Litigate

By
Real Estate Agent with Carmody and Associates LLC

Old BaileyGoing to Court is rarely a great idea. Many feel that the lawyers are the only winners in a court battle. But what if you have a problem or dispute that you feel should have a legal remedy: Debt collection, landlord/tenant dispute, breach of contract, malpractice, fraud or misrepresentation ? If you do business in today's world, complex legal disputes are a constant concern.

There are a number of alternative dispute resolution techniques or procedures that are available to you as a business man/woman or a real estate professional to avoid a costly court fight with the time and expense of case preparation and presentation by a team of expensive lawyers and staff.

  • Negotiation - the basic technique for all business situations - negotiate an agreement with the other side. The benefits are obvious: Little or no cost as you are negotiating on your own behalf in the normal course of business. Sometimes you may hire a professional negotiator, such as your attorney, to negotiate for you. If you are a real estate agent, your buyer or seller has, in effect, hired you to negotiate for him/her in the process of selling or purchasing a house.
  • Mediation –  The parties meet with an impartial, third party, neutral (may be a new use of the term for you: neutral is a person who is impartial) –  or mediator - who will facilitate the process of reaching an agreement among the parties through a structured (but informal) process designed to bring the parties together to reach an agreement without the cost and formality of litigation.  The mediator does not hear the evidence and then render a ruling.  The parties decide to settle their dispute with terms agreeable to both of them –  or not.  The mediator tries to clear away the obstacles that created the dispute, to help the parties understand the strengths or weaknesses of both sides of the case and to help the parties find middle ground that can lead to a settlement agreeable to both parties. Attorneys may be used in case presentation depending on the value of the claim and the needs of the parties.  Because mediation is a process of settlement –  the discussions, offers and counter-offers which may arise in mediation are confidential and not admissible in any later court proceedings.  Sometimes the terms of a mediated settlement may go beyond the limits of monetary compensation (usually the sole remedy available in Court) with creative solutions that might not have been possible in Court.  A mediation settlement agreement may be filed with the Court by the parties as a stipulation which becomes the basis for the disposition of the case by the Court.  Although failure of the parties to abide by the mediation agreement is unusual, since both parties were in agreement, a breach of the agreement will typically be reported to the Court for swift enforcement action by the Court.
  • Arbitration is a more formal process, similar to litigation, where the parties submit their case to an impartial arbitrator or panel of arbitrators who will hear the evidence and render a ruling in the case which may be binding or non-binding, depending on the intent of the parties.  Arbitration can be less costly and quicker than litigation because certain elements of the litigation process are not present.  Discovery and other procedural issues (jury trials for example) are not present in Arbitration.  Arbitrators may have special expertise in subject matter related to the dispute (such as construction contracts and performance).  Attorneys are more likely to be used to represent the parties.  Arbitration may have been agreed to in advance by the parties as part of their written contract which is the subject of the current dispute.  If the contract included a provision for arbitration in the event of a breach of contract or dispute related to the contract, then the parties are bound by the terms of the arbitration clause of the contract.  Arbitration clauses are usually contained in the initial contracts as a means to provide quicker and less costly remedies to the parties than litigation in the event of a dispute.
  • Litigation is the most formal of our dispute settlement procedures.  Your day in Court is controlled by complex rules of procedure and evidence which may limit the admissibility of evidence for consideration by the the Judge or jury.  Significant pre-trial procedures provide for exchange of information between parties through discovery.  The trial is more complex and formal than other methods for dispute resolution.  Beyond the limited Small Claims Court procedure (in Florida, claims valued at less than $5,000), attorneys are utilized by both parties to present their case.  The process is involved and expensive but designed to be fair and to permit a Judge and, in some cases, a jury to hear the facts of the dispute and to render a enforceable verdict determining the winning side and awarding a monetary judgment to compensate the winner.

What many potential litigants may not know is that in most cases in litigation the Court will order the parties to mediation as part of the pre-trial procedures to try to permit the litigants to resolve some or all of the issues in the case prior to trial to preserve judicial resources and to allow the parties to resolve their disputes with the lowest cost and least time and trouble in the Court system.  The panel of available mediators for Court-ordered mediations has been screened by the Florida Supreme Court in its certification process to assure that mediators meet certain standards, established by the Court, for experience, education and training.  The rules promulgated by the Florida Supreme Court for mediators and applicable statutes also establish rules for conduct, ethics and continuing education. 

MediationIt is also possible for parties to a dispute to enter into their own pre-suit mediation to try to resolve their case before formal suit is filed.  It is not unusual for professional associations and organizations to provide recommendations to their members of a number of mediators in their local area who may have special background or experience in the relevant profession.  Typically, in Florida, parties select their mediators, usually with the assistance of their attorneys, from a panel of Florida Supreme Court certified mediators. 

It should be noted that a number of studies indicate that the agreements that come out of successful settlement procedures such as mediation are generally more advantageous to the parties than court proceedings.  One such study is discussed in the New York Times (Aug 8, 2008) <link here>

So, for so many reasons, if you find yourself in a legal dispute –  remember that it may be to your advantage to MEDIATE –  don't litigate.  Alternative Dispute Resolution (ADR) to include mediation is a valuable tool for your business.  Use it.

 

Additional information about Mediation in Florida at MidFloridaMediation.com

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Comments 6 New Comment

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Rainmaker
408,223
Mykel Martin
The TCR Group at Keller Williams Realty
(909) 476-9600 ~ www.WeLoveRanchoCucamonga.com

This is very sound advice - people are so quick to sue nowadays, they forget that sometimes a simple face-to-face can resolve the issues!

August 02, 2010 10:16 PM
Rainmaker
591,122
William J. Archambault, Jr.
The Real Estate Investment Institute

Ted,

Arbitration is great when selectively used. It's a great tool for use between good people, but not deadbeats.

As a land lord I could see arbitrating repairs, but not rents!

Bill

 

August 02, 2010 10:20 PM
Rainmaker
639,898
Marchel Peterson
Spring TX Real Estate E-Pro
Results Realty

Ted, My sister got DRUG THROUGH THE MUD in Colorado on a frivolous dispute.  It cost her thousands of dollars and would not have even happened here in Texas.

August 02, 2010 11:08 PM
Rainmaker
363,669
Ted Baker
MidFloridaMediation.com
Carmody and Associates LLC

Thanks to all for stopping by. 

 

Bill - I am a mediator, so I have a preference for our procedure.  In our part of Florida, the County Judge will not hear a landlord/tenant case unless rent has been paid into the court.  Then the mediator will try to settle case - which in many cases is merely an agreement on how and when the tenant exits the property.  If we cannot settle, the case is back in front of the Judge.  

 

Marchel - I believe some protection against frivolous lawsuits is necessary.  I favor a system where the loser pays all costs and fees,  Possibly some sanction against the attorney who filed the suit would also appeal to me. I am sorry your sister had the problem - it causes people to lose respect for the legal system when the Court processes are abused.

August 03, 2010 12:01 AM
Rainmaker
776,333
Richard Weeks
Realtor, Associate Broker - Manager Business Development
Waller Group

Ted,

Very good advice.  In our contract buyer and seller have the option to pick mediation as a dispute resolution.

August 10, 2010 03:50 PM
Rainmaker
363,669
Ted Baker
MidFloridaMediation.com
Carmody and Associates LLC

Richard - thanks for stopping by.  Mediation is a great tool to use.  Surprising (and favorable) results can be achieved.  And it sure beats going to court !

I have been trying to spread the word through the "Mediation for Realtors" group - but we do not have many members in the group.  I would appreciate your comments or stories of your Texas experiences with mediation if you know offices that have used the mediation process with good (or bad) results.  

ApplauseArbitration clauses are common in all sorts of contracts, but I do not hear of mediation clauses very often. My hats off to Dallas and other areas of Texas that may be taking that step in the right direction.

 

August 11, 2010 10:50 PM
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Rainmaker
363,669

Ted Baker

MidFloridaMediation.com
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