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Alternative Dispute Resolution: Perspectives In Mediation

by Jim W Hildreth
May 2010 Jim W Hildreth
A Bay Area Buyer finds a home via the marketing of an auction house that is marketing out of state real estate. He can't believe that he has found a home under $15,000 and he transfers $3,000 dollars to the seller’s bank account as a deposit. He soon discovers that the property has back taxes and the escrow company chosen by the seller will not issue title insurance. He cancels the escrow; however the seller will not return his deposit.

A retired couple makes the decision to downsize, they are on acreage and the acreage supports vintage California Oaks. The Oaks require ongoing removal of mistletoe that cost $2,000 a day from a tree service. The sellers place the home with a real estate brokerage, the property sells and the buyer, after close of escrow, discovers the true cost to maintain the trees. The buyer threatens litigation due to non-disclosure.

A San Jose couple has retired and their dream is to own acreage and live the country life. They move to the foothills and the zoning permits another home to be built. They invite their daughter and son-in-law. Half the acreage looks like a park, the other side looks like a scene from the Beverly Hillbillies. The daughter and son in-law announce a separation and the property is upside down in value by $150,000.

A neighbor won’t allow access for ingress and egress, and boulders are placed at one of the entries. One of the neighbors receives physical threats. The attorney works on the dispute for over six months and the dispute is going to trial. The court suggests mediation and one of the attorneys has strong feelings against alternative dispute resolution. The attorneys follow the court's direction and a neutral mediator is selected and the parties meet without their counsel. The neighbors come to mediation angry they leave three hours later with a written settlement. The wife cries out “We can be neighbors again”. The attorneys on both sides are shocked and the court is relieved.

The Berkeley Victorian Home residents who lived in their Berkeley home for 30 years disclose seepage in the basement in heavy rains. The new buyers discover up to 8” of water for the past 2-years. The remedy of a new French Drain is expensive. The buyers are ready to sue the sellers. California Real Estate Contracts California Association of Realtors call out for mediation in a dispute between buyers and sellers.

Each of these disputes involved the legal community for advice and direction and all parties were faced with decisions that involved stress, financial hardship and options for a lawsuit. Non Disclosure issues, easements, septic, wells, water intrusion, and partnership breakups have all been common issues that have come to and have been settled by mediation. Today the courts are suggesting that mediation and Alternative Dispute Resolution has played a major role in reaching settlements.

In Alameda County Superior Court, local judges have referred over 2,000 cases in the past year to some form of ADR and approximately 700 cases to Panel Mediators. The Mother Lode community of Jackson Amador County Superior Court has an active ADR Panel with equally positive results over the past year.

Mediation does work if the parties are willing to communicate and make compromises. Each of the above disputes was successfully resolved through Mediation.

The Alameda County Bar Association has an active ADR Section and, as one local law student who just joined as a member stated, the educational monthly updates are the “Crown Jewel” of continuing education on the topic of mediation and ADR.

The ACBA Executive Committee of the ADR offers each of mediators the chance to grow and meet with fellow members who have a passion for resolving conflict with alternatives to litigation that can be costly and time consuming.

Mediation is worthy of consideration the next time you face a new client opening the gateway to Mediation as a Alternative Dispute Resolution.

Mediation does work in all areas of conflict in disputes involving a medical bill, the breakup of a marriage, real estate or a personal injury.

Conflict spells “Opportunity” and it is the wise legal counsel that suggest mediation, allowing all options of settlement with a spirit of compromise and open dialog.

Biography


Jim W Hildreth is both a private and court appointed mediator, who's specialty is "Real Estate' Disputes.

He has over 40 years of experience and is licensed as a Broker in both California & Louisiana.

He is an also an "Expert Witness" in California Superior Courts.

When not mediating, his hobbies are photography and playing zydeco music.



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