Real Estate Mediation is
a voluntary cost-effective process for resolving
disputes involving the sale and ownership of real
property. Issues to be resolved can include one or more
of the following:
PURCHASE DEPOSITS – When a buyer, who deposits money as part of a real estate purchase
contract, later decides not to (or is unable to)
complete the purchase, and a dispute arises as to
whether or not the buyer is entitled to recover all or
part of their deposit.
– When a buyer of a property contends that the seller
has not fulfilled their obligations of an agreed upon
real estate purchase contract, prior to and/or after
close of escrow.
– After the purchase of a property, when a buyer
discovers problems they believe were not disclosed to
them prior to the sale, as required by California real
estate law. These cases make up the majority of real
estate mediations, and involve a buyer requesting
reimbursement for repair costs, payment of damages,
and/or a retroactive adjustment in the purchase price.
– Where the owners of one or more parcels are unable to
come to agreement about actions to take in order to
protect and/or develop the property(s). These cases can
involve issues such as lot line adjustments, water/well
drilling rights, road maintenance agreements, property
development, easements, septic/sewer problems and water
DISSOLUTION OF OWNERSHIP
– When two or more parties share ownership of a
property, and one or more owners wish to sell their
interest in the property.
Most real estate
contracts executed in the state of California include a
clause requiring parties to mediate a conflict prior to
taking the issue to arbitration or filing a lawsuit.
Refusal to participate in the mediation process usually
precludes the party that prevails in the arbitration or
lawsuit form being awarded attorney fees. Thus, it is
in the interest of all affected parties to participate
in the mediation process.
The mediator is jointly
chosen by mutual agreement of all parties to the
mediation process. Fees and costs charged by Common
Ground Mediation Services (CGMS) will be split equally
by all parties to the dispute, unless otherwise agreed
to in writing.
Once CGMS is chosen to
mediate the dispute, and a Real Estate Mediation
Agreement has been signed, the following activities will
Parties to the conflict will submit to CGMS copies of
documents related to the dispute, such as the purchase
contract, contingency releases, transfer disclosure
statements, and written communications between the
JOINT MEDIATION SESSION:
All parties will meet with the mediator at a neutral
site at a mutually agreed upon date and time. Normally
no attorneys are present, although parties are
encouraged to consult with their attorneys prior to and
after the session. Real estate agents for the buyer and
seller often attend to assist their clients. On
occasions, the real estate agents may be one of the
parties to the mediation.
Session begins with introductions and a review of the
mediation process by the mediator. Each party to the
dispute will then have an opportunity to present their
point of view, without interruption by the other
parties. The mediator assists in clarifying issues,
identifying the interests of the parties, and isolating
the areas of agreement and dispute.
mediator will meet separately to “caucus” with each of
the parties to consider alternatives to the positions
that they had taken prior to mediation. Partied
sometimes make new offers at this point, based on a
deeper understanding of the other parties’ points of
view. The mediator will often “shuttle” back and forth
between parties to clarify points and/or present new
offers prepared by other parties. The mediator will
review with each party the strengths and weaknesses of
their positions. Sometimes a joint "brainstorming"
session is held to stimulate new ideas. During this
period, the mediator may offer suggestions as to
available options that had not been previously
considered. The mediator probes into underlying and
often unspoken issues by the asking of pertinent
questions. The parties trade with each other over the
terms of the settlement until all issues have been
In some cases all issues may not get resolved during the
Joint Mediation Session. If so, it may be necessary to
adjourn to allow parties to research additional
information, obtain additional bids for work to be done,
and to consult with their attorneys. CGMS will normally
coordinate additional negotiations between the parties
Once the parties reach agreement on all issues, CGMS
will prepare a written Memorandum of Understanding.
This Memorandum is then used by an attorney to create a
legally binding agreement, which typically includes a
clause stating that it settles any and all present and
future claims between the parties.
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