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The PWAR
Mediation Solution
Mediation – A “Winning” Alternative
Mediation – General Information
Ready to Mediate
Mediation – A “Winning” Alternative
Despite the best efforts of well-intentioned REALTORS
,
disagreements still occur. While less formal, faster,
and less expensive than litigation, arbitration is not
without cost in both time and money on the part of the
parties. Substantial board/association human and
financial resources are also consumed in providing this
service to members. There is an alternative to
arbitration, albeit one that is available only where all
parties to a dispute voluntarily agree to use it -
mediation.
Mediation is a service provided by every
board/association of REALTORS
. Unlike
arbitration, in which the parties present their cases to
a panel of arbitrators whose decision is final and
binding, mediation brings the disputing parties together
in an atmosphere conducive to dialogue and conciliation,
encouraging them to work together to reach a mutually
acceptable resolution. Experience has shown that 80% or
more of the disputes that otherwise would be arbitrated
can be resolved faster and more efficiently through
mediation. This is a significant savings in time and
expense for both the parties and for boards and
associations. Mediation can also be a positive
experience for those who participate because, rather
than a "winner" and a "loser" being determined by a
panel of arbitrators, in mediation the parties work
together, guided by a mediator, to fashion their own
solution. Mediation is frequently a "win-win" situation
for everyone.
Boards/associations generally have one or more mediation
officers who act as facilitators/intermediaries. These
are typically REALTORS
who are
experienced and adept in dispute resolution techniques.
While mediators often have personal "styles", their
primary objective is to help each party appreciate the
position of the other party, then to move them forward
toward an amicable resolution.
Detailed information about mediation is in the National
Association's Code of Ethics and Arbitration Manual.
Specific information about the procedures for
initiating mediation can be obtained from local
boards/associations of REALTORS
.
Mediation can be initiated in a number of ways. While
there is no reason why two REALTORS
with a
disagreement cannot simply ask the local
board/association to provide a mediator, in many
instances mediation begins with the filing of a formal
arbitration request. In some areas, requests for
arbitration are automatically reviewed by the grievance
committee and, after a determination is made that an
arbitrable dispute exists, the disputing parties are
invited to participate in mediation.
In
other areas, filing a formal arbitration request
automatically triggers a request to the parties asking
whether they would like to attempt mediation. If the
parties agree to mediate their dispute, the grievance
committee is not called on to consider whether an
arbitrable dispute exists unless a party subsequently
withdraws from the mediation process, or mediation
proves unsuccessful. And, where mediation is offered
prior to initial review of an arbitration request by the
grievance committee (to determine whether an arbitrable
dispute actually exists), if any of the parties
initially refused to participate in mediation, mediation
will be offered to the parties again following the
grievance committee's review if an arbitrable dispute
actually exists. This "second chance" approach is based
on the premise that mediation is preferable to
arbitration, not only from the parties' standpoint but
from that of the board/association, and acknowledges
that some parties may not choose to mediate unless it is
clear that an arbitration hearing is the undeniable
alternative. Offering a second chance to participate in
mediation ultimately benefits the parties and the
board/association.
A
mediation session is fundamentally simple. The mediation
officer uses various techniques to encourage the parties
to explore, understand, and appreciate each other's
position. The most desirable solution is one crafted by
the parties themselves through cooperative effort. When
the parties reach agreement, they are encouraged to put
it in writing and sign it. If the parties are unable to
reach a mutually acceptable solution, the mediator can
recommend a solution. The mediator's recommendation can
be made orally or in writing, though a written proposal
that the parties can subsequently consider is preferred.
The parties then have up to forty-eight hours to
consider the mediator's recommendation and decide
whether they will agree to it. If either party does not
agree with the mediator's recommendation, the mediation
process is over and the arbitration process proceeds
(assuming arbitration has been requested).
The
fact that at times mediation does not produce the
desired result does not diminish its value to REALTORS
and to
boards/associations. There will be instances when
REALTORS
mediate in good faith but, for one
reason or another, are simply unable to reach a joint
agreement or accept the solution proposed by the
mediator. In such cases, the alternative is a decision
imposed on the parties by a panel of arbitrators after
an arbitration hearing. While this may be the only
answer, a mutually-fashioned, mutually agreed upon
solution to disagreements between REALTORS
is the
preferred outcome.
Mediation – General
Information
As an alternative to arbitration,
mediation is an option offered to resolve a dispute
arising out of a real estate transaction.
Mediation is designed to reduce the time
and expense of arbitration and to permit amicable
resolutions of disputes involving Association members,
clients and customers.
Mediation is voluntary. No party may be
compelled to participate. Mediation will proceed only
if all parties to the dispute voluntarily consent to
mediation and sign and return to the Northern Virginia
Association of REALTORS®,
the Mediation Consent form. Mediation may be terminated
by any party at any time and for any reason prior to the
acceptance and signing by all Parties of a Mediation
Resolution Agreement.
If any party withdraws from the mediation
at any point, any discussions, comments or
determinations reached through mediation will not be
introduced as evidence nor be considered in any manner
by an Arbitration Hearing Panel. Furthermore the
Association Mediation Officer will not be required to
testify before an Arbitration Hearing Panel.
If you wish to mediate, the Consent to
Mediate form must be signed and returned to the
Association If the complainant has agreed to mediate
and the respondent also wishes to, the respondent must
return the signed Consent to Mediate form to the
Association within 15 days from date of this mailing.
Failure of respondent to do so shall be deemed to be an
election not to mediate and the dispute will proceed to
arbitration. The parties must submit the “Request And
Agreement to Arbitrate” form and the “Response and
Agreement to Arbitrate” Form (whichever is applicable)
and a $500 filing fee with their Consent to Mediate
form. NVAR procedures require that the Grievance
Committee review the request (and response, if requested
by the Grievance Committee) to determine whether an
arbitrable matter exists before proceeding with
mediation. Once determined arbitrable by the Committee,
the Association Mediation Officer shall designate a
date, time and place for the mediation. Each party will
receive at least 10 days prior notice of the designated
date, time and place.
Either party may file a written request
for disqualification of the Mediation Officer.
Mediation is an informal, no cost,
non-structured process. The parties can agree to a
mutual resolution of the dispute at any time during the
mediation process. If they do not, however, the
Association Mediation Officer will make a recommendation
after a thorough discussion of the dispute. If either
of the parties objects to or rejects the proposed
resolution, the mediation process will be deemed
concluded with no force and effect on any party and the
dispute shall then proceed to arbitration.
The “Request and Agreement to
Arbitrate” form or the “Response and Agreement to
Arbitrate” form (whichever is applicable) and the $500
filing fee must be returned with the Consent to Mediate
form
if you wish to mediate.
Ready to Mediate
Please
download and complete the following forms:
Please send completed
forms to:
PWAR
9213 Center Street
Manassas, VA 20110
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