Mediation: "Collaborate Early; Save Time, Money, and Heartache"

Twenty days ago Amelia and Adam Buyer went out for a celebratory dinner at their all-time favorite restaurant in the heart of Crestview, having just entered a contract, with the help of their Realtor, to purchase their lakefront dream home in Okaloosa County. Because Randy Seller was relocating within the next sixty days, he was motivated to price his home for a quick sale. He, too, was ecstatic when the Buyers offered to pay his full listing price.

Both the Buyers and Seller wasted no time. No one could have been happier . . . until yesterday. Seller learned, due to no fault of his own, that his employer had a last minute change of plans and would not be able to relocate him—not in 60 days, maybe not ever. Disappointed and dreading that he would have to share such news with the Buyers, Seller contacted his Realtor for help.

Fortunately, the Buyers’ Realtor had used a form known as the “Residential Contract For Sale And Purchase” approved by The Florida Realtors and The Florida Bar. Seller’s Realtor, who is educated and experienced with the use of the standard “FR-BAR” contract, quickly flipped the pages to sections 15 and 16, entitled, “Default and Dispute Resolution.” There, the contract provides that for any party to seek damages under the contract, the harmed party “shall submit such Dispute to mediation.” The parties are bound to select a mediator who “must be certified or must have experience in the real estate industry.”

This morning Seller’s Realtor called me. Although the parties still have time, pursuant to the specific language of the contract, to try to resolve the matter before mediation, Seller’s Realtor wanted to know how he should explain the anticipated mediation to Seller. I answered as directly and concisely as I thought necessary for this situation. Here’s what I said:

My motto: “Collaborate Early; Save Time, Money, and Headache.” My guess is that the Buyers and Seller will be able to resolve this matter at mediation without the need for a lawsuit.

Mediation is an alternative, voluntary method of resolving disputes outside of the court system. It allows parties to create their own destiny with respect to a particular dispute rather than allowing a third party—like a judge or jury—to dictate the parties’ destiny. Compared to litigating a case through the court system, mediation almost always is less expensive, quicker, and robs fewer nights of sleep from the parties.

The mediation session is an informal but orderly meeting. Typically, parties attend with their attorneys, if attorneys are involved. In the case of pre-suit mediation, like the one described in this case, the parties might agree to allow their Realtors to attend. The mediator is an impartial, third party neutral who does not try to find a winner or loser but, instead, helps the parties find middle ground for compromise. The mediator has no authority to require a settlement and cannot force a party to stay at the mediation session. When governed by Florida law (as is the case with the FR-BAR contract), all communications made during the mediation session are confidential, except where disclosure is required or permitted by law.

Generally, the mediator opens the mediation session by explaining the process to the parties and then allowing the parties to explain their points of view regarding the dispute. Often, the mediator then separates the parties in different rooms and acts as a negotiation facilitator, moving back and forth from room to room, to help the parties determine their true needs and reach a compromise. When a settlement is reached, the parties draft and sign a mediation settlement agreement before leaving the mediation session, which is frequently followed by another celebratory dinner and a full night’s deep sleep.

Mediation works more often than not. And it is available for all types of disputes—not just real estate—before a lawsuit is filed, during an ongoing lawsuit, and sometimes even after a lawsuit is concluded.

When you find yourself faced with an escalating dispute that you prefer to resolve before it spirals out of your control, consider mediation with a Certified Mediator who the Supreme Court of Florida recognizes as having fulfilled the requirements of the Florida Rules for Certified and Court-Appointed Mediators.

[About the Author: Ashley B. Rogers is a shareholder of the law firm of Chesser & Barr, P.A., with offices in Crestview and Shalimar. She is a Board Certified Specialist in Florida real estate law and is a Certified Circuit Mediator. She actively practices law in Florida and Alabama state and federal courts.]