Preparing for Mediation
by Paul Merlyn, Mediator, CID Resolution
Mediation is becoming an increasingly popular choice for dispute resolution, and its use in real estate disputes is no exception. Here are some cases that are typically suitable for mediation:
- Carole bought a $1.2 million-dollar fixer-upper in Marin last month. Now she wants to void the transaction, alleging that the property is uninhabitable and the seller failed to disclose its former use as a meth lab.
- Alan, Kate, and Troy are co-owners of a three-unit TIC. Their excitement about condo conversion has recently turned to bitterness as they argue over rights and obligations while implementing a conversion.
- College sweethearts, Jonathan and Vanessa purchased a condo three years ago. Now their relationship is over. Vanessa wants to move out, but they can’t agree on terms for Jonathan to buy out her equity.
- Frank lives in a San Francisco high rise. He’s threatening to sue both his HOA (homeowners association). The HOA recently ordered him to install carpet to muffle the sound of his footsteps after complaints from the occupant of the unit directly below.
- Helen is not at all happy that her roof still leaks after she paid a contractor almost $1200 to fix the problem less than three months ago. The contractor, meanwhile, isn’t returning her calls.
A skilled mediator can keep all these people out of court, saving them time and money and empowering them to create equitable settlements. But, like anything else, the best outcomes of mediation follow when parties are best prepared for the mediation process. Mediation is quite unlike the adversarial alternative of court. Here are some pointers on getting the most out of mediation:
1. It’s a Problem, Not a Contest
Which terms of settlement can satisfy both parties’ interests? This is the problem that you and your mediator will work towards solving. During mediation, try to focus on this problem rather than on the deficiencies of the other party. Maintaining focus can be a challenge, especially when we’re consumed by powerful emotions such anger and fear. But your mediator will help you by guiding the conversation away from destructive patterns of communication.
2. Mediation Begins with Me
Your interests remain paramount throughout mediation. Unless you’re satisfied with a proposed settlement, you shouldn’t agree to it. The mediator won’t allow either party to be a doormat or to treat the other as one. However, you can help prevent such inequality by asserting your right to act in your best interests. The mediator will support you by creating a safe environment for you to express your ideas of what’s acceptable to you.
When listening to the other party, you’re really playing detective. Sometimes you’ll need to figure out the emotion behind the words. (For example, when a party says, “I want to ensure that you respect my privacy,” is this party expressing fear, doubt, or anger?) Other times, a party will communicate emotion very clearly (through, say, a raised voice), but you’ll need to interpret its meaning. Mediators are experts at listening, and they’ll apply this expertise to help you listen to each other. They also create space and distance between parties that can help transform the nature of a negotiation.
To listen is to understand without necessarily condoning or forgiving the other party for a perceived breach or violation. When you listen, you’re not denying or defending, you’re not dismissing or patronizing. Anger in such circumstances has no means to sustain itself. It collapses under its own weight, and problem solving begins in earnest.
5. Keep a Realistic Perspective
Conflict resolution isn’t easy. That’s why mediators exist. Be patient. Don’t expect a quick fix. And allow the mediator to guide the process. With a problem-solving attitude, you’ll have every chance of reaching a settlement that will satisfy your interests. Some 80% of all cases in mediation end in a settlement.
Paul Merlyn is Principal Mediator with CID Resolution which mediates real estate disputes for homeowners, HOAs, and contractors. He can be contacted at 415.378.7003 or email@example.com.