Real estate disputes are common, and they come in all shapes and sizes. When real estate issues come up, litigation can often be necessary. Turning immediately to the courts is often the first reaction of the parties involved. When people feel as if they have been wronged regarding property transactions, they may feel inclined to take an aggressive approach.
However, in reality, extended real estate litigation can be emotionally and financially draining for all of the participants. When real estate buyers and sellers, as well as landlords and tenants, can mediate their differences out of court, everybody benefits.
Consider Your Non-Negotiable IssuesLitigation is almost always unpredictable, stressful, and expensive. One reason parties often benefit from mediation is that they still maintain control over the outcome of the dispute. In other words, they aren’t waiting to see how a judge will rule in their case and risking that the judge will rule unfavorably.
Before you start the mediation process, it is important to consider what your bottom line is for certain issues. For example, if you are involved in a dispute of commercial real estate and you are the seller, consider the lowest amount you will accept for the property. Do not make your bottom line known to the other party, but you can discuss it with your legal representation. You can always work backward when it comes to a strategy for better determining your button line. In other words, start with your ideal amount and then work backward.
Consider Attorneys’ Fees and How They Play Into Your CaseYou will need to consider attorneys’ fees and costs when you engage in a risk analysis. Even if the other party is willing to meet or exceed your absolute bottom line, the legal costs associated with your case could drop the ultimate settlement so low that you cannot pay your fees and costs and still come out ahead. Typically, unless a real estate contract states differently, each party in a dispute has to bear their own attorney’s fees.
If you are not able to pay for your own attorney’s fees and costs, you need to factor in the expected total into your recovery amount. The good news is that mediation is almost always significantly less expensive than litigation. If you do have a reasonable expectation that you will be able to cover your attorneys’ fees and costs reimbursed by the other party, this should factor into your mediation strategy.
Keep an Open Mind During the ProcessMediation is completely different from litigation. During litigation, the parties need to follow rigid rules of procedure. A somewhat aggressive approach is necessary to succeed in litigation. On the contrary, mediation allows the parties to discuss their problems and talk openly. You do not need to communicate through your lawyers during the mediation process like you need to do during litigation.
During mediation, you can take the time needed to try to understand the point of view of the other party. Instead of coming in with your mind made up, try hard to keep your options open. The mediation process relies on both parties being willing to make concessions and try to find creative solutions.
The more you let the mediation process work, the faster the process will likely go. Mediation is often the proffered way to resolve disputes because it saves everyone involved significant time and money. Instead of spending weeks paying to prepare for a stressful trial, you can instead spend your time in a series of lower stress mediation sessions.
Compromise When NecessaryIn mediation, you have the option to compromise with the other party so that you can achieve a satisfactory outcome regarding your real estate dispute. On the contrary, after litigation, only one party wins, but they can still ultimately lose when the cost of litigation wipes out all their earnings. One of the benefits of working with an impartial mediator is that the mediator has the best interest of both parties in mind.
Thus, the mediation process is best able to address certain power imbalances between the parties. An effective mediator will not let one side trample the other side, but will listen to the goals and needs of each side to spur them on to find a solution that works for both. With a quality mediator, neither party should feel like they are being taken advantage of or treated unfairly.
Concentrate of the Legal Issue, Not the Other PartyBy the time a real estate issue gets to the mediation stage, both parties may already have developed harsh feelings toward the other. While understandable, focusing on fighting against the other party who may have wronged your business will not help the mediation process move forward. One of the most important things you can do to help the mediation process move forward is to focus on the actual real estate issue at the center of your dispute.
As hard as it can be, putting aside your frustrations regarding the other party as soon as possible can be incredibly important. Some mediators allow the parties to vent their frustrations in the beginning, then ask the parties to agree to engage in a productive discussion on the issues. Your mediator can help you and the other party lay out all of the issues that you need to resolve.
Contact Solomon Appeals, Mediation, and Arbitration TodayFounding attorney Donna Greenspan Solomon has decades of experience when it comes to mediation. She offers mediation services to those already represented by lawyers. As an experienced litigator, she understands the importance of hiring a mediator who understands the underlying substantive area of business litigation. She is a proactive mediator who gets to the heart of the dispute and patients help the parties resolve the issue. Contact her today to schedule an initial consultation.
Donna Greenspan Solomon, Esq., handles business-related litigation and appeals (state and federal), mediation, and arbitration.