Don't fight!!! Mediate!!!---The advantages of trying to work things out short of litigation

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Mediation is not a new phenomena; it is just something that has become more in vogue, because the plain truth is that most people do not have the time and energy to litigate their disputes in the Courts in this difficult economic environment. For all but the privileged few, resolving disputes through Mediation works better because it is a faster, less expensive way to reach a point where litigation may lead you anyway.

When people mediate, they open up some of their secrets and make full disclosure. In most litigation, full disclosure only comes after hours and hours of time with interrogatories, depositions and Court motions. As I indicated above, if the information is going to come out any way, why not speed up the process and not be evasive? Candor almost always leads to trust, and trust leads to resolution.

This fall the writer spent forty hours being trained as a Divorce Mediator. That training enables me to work with couples who have decided to go their separate ways, but wish to avoid the expense and stress of locking heads in Divorce litigation. It has been shown that Mediation expenses in a Divorce are roughly 15% of the cost of a litigated Divorce. Many couples are choosing Mediation over litigation, because they would like to preserve a relationship with their spouse that is not hostile. A well-scripted Mediation can arrive at that result and leave a few dollars in the people's pockets to move on with their lives.

While I have been trained as a Divorce Mediator, I have used my Mediation training in other positive ways. Recently, two partners in a public relations firm had come on hard times. The firm, at least as it was currently constituted, could not survive. The individuals had talents and resources; together they were just not getting the most out of what they had. The partners requested that I serve as a Mediator to assist them in an orderly liquidation of the firm and a fair distribution of assets. There were also  Bank promissory notes and other firm responsibilities which needed attention. We had three constructive Mediation sessions, the cost of which was borne equally by the respective parties. When we had completed the last session, we committed to writing what the partners had agreed to. My role, in a situation like this, was to act as an impartial "sounding board" for the resolution of important issues for the partners. I had each of them execute a pre-session document wherein they acknowledge my role was as a Mediator, not an advocate. For these two people, struggling with family financial issues as their firm failed, having an impartial person direct them to solutions was helpful.

I am going to start putting Mediation provisions in all of my Purchase and Sale Agreements. What I am going to suggest is that any closing type disputes, including condition of property at the final inspection before purchase be submitted to an impartial person, probably the then President of the Greater Boston real Estate Board for mediation, and resolution, not later than 24 hours ftom the time of dispute, the decision of the Mediator being final and not subject to review.

In future posts, I may go into greater detail about Divorce Mediation. It is not a "cure-all", and it is not for everyone. If, however, a divorcing couple is at a point where there is virtual certainty that the marriage cannot continue, but there is more a feeling of common failure, rather than anger, Divorce Mediation can be a less expensive, less confrontational, method to end a marriage with constructive plans for moving forward.


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Jim W Hildreth

Excellent article on the advantages off offering Alternative Dispute Resolution mediation vs litigation. In California Mediation are built into the Real Estate Deposit in case of a dispute.

Mediation has many advantages with real estate disputes. Its confidential, its cost effective and the most important it gives the parties control for reaching consensus.

Often the judicial system is slow and expensive.

Disputes do happen in Real Estate and Mediation should be apart of every dispute.

In Sonora CA the local court is seeing a 75%  settlements with mediation.

Jim W Hildreth Broker & Mediator

Feb 17, 2011 02:43 AM #1
Andrea Swiedler
Berkshire Hathaway HomeServices New England Properties - New Milford, CT
Realtor, Southern Litchfield County CT

Elliott, what a great idea to include mediation in the purchase and sale agreements. Sometimes those arguments can stop a sale dead in its tracks at the final hours... and an impartial person to assist is a fantastic idea!

Feb 17, 2011 03:02 AM #2
Richard Weeks
Dallas, TX

Great advice.  Always better to try to work it out before going to court.

Feb 18, 2011 02:14 AM #3
Conrad Allen
Re/Max Professional Associates - Webster, MA
Webster, Ma, Realtor

The P&S agreement is between the seller and buyer.  Better to put in the MLS offer of compensation.

Feb 18, 2011 09:52 AM #4
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Elliott S. Topkins

Massachusetts Real Estate and Title Atty
I need a Massachusetts real estate attorney

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