2018 MEDIATION RULES AND GUIDELINES
1. AGREEMENT OF THE PARTIES: These Mediation Rules and Guidelines shall apply when the parties have agreed in writing to mediation under the Maryland REALTORS®, Inc. (MAR) “BUYER – SELLER” Mediation Program as provided by OM Services (OMS). Any provisions may be modified by mutual written agreement by all parties to the dispute. The parties understand and acknowledge that neither OMS/MAR nor the assigned Mediator to this matter has the power or authority to render a decision, compel the parties to settle their dispute, or to continue to mediate beyond the parties desire to do so. However, by agreeing to mediate, the parties agree to attempt to resolve their dispute by negotiating in good faith.
2. INITIATION OF MEDIATION: Buyers or Sellers may initiate mediation under these Rules and Guidelines by fully completing all items on the REQUESTING / RESPONDING PARTY AUTHORIZATION & CHECK-OFF LIST (with required attachments and payment) to OM Services. BUYERS & SELLERS ARE THE ONLY PARTIES THAT CAN BE NAMED. ANY INCOMPLETE INFORMATION WILL DELAY THE PROCESSING OF YOUR REQUEST OR RESPONSE
3. SELECTION OF MEDIATOR: No person shall serve as a Mediator in any dispute if that person has any financial or personal interest in the results of the mediation, unless after full disclosure, the parties have given their written consent. OM Services reserves the right to select all Mediators for assignment.
4. MEDIATION CONFERENCES / SCHEDULING: Will be held at facilities located within, or in close proximity to the county in which the dispute occurred. It is OM Services’ custom and practice to schedule mediations no less than 14 days nor more than 60 days from the initial request. If all parties are not able to agree upon a date, at the expiration of 60 days, OM Services is authorized to select the best available date and time. Parties are required to list any restrictions or special accommodations on the scheduling form provided. (Refer to the Mediation Scheduling & Contact Information forms [4RQP & 4RSP] for complete details.)
5. REPRESENTATION BY LEGAL COUNSEL: During the mediation and thereafter, neither OMS nor the Mediator will act as legal advisor or legal representative for any of the parties. Any party may be represented at the conference by legal counsel. Any party who intends to do so shall notify OMS of such intent when executing the “Requesting/Responding Party Contact Information” form(s). OMS shall insure that all parties are made aware of all representations of which it is notified.
6. CONDUCT OF THE MEDIATION CONFERENCE: The Mediator will conduct orderly proceedings at the mediation conference. Protocol, behavior and logistical issues will be discussed with the parties prior to commencement of the mediation. Parties participating in the mediation conference must have the proper authority* to enter into and execute a binding written Memorandum of Understanding setting forth the terms and conditions of their understanding in the event an acceptable resolution is reached. *Proper authority includes parties who would be represented by another person and has granted that person the legal right to represent them in this matter. Parties electing to be represented by another must submit a written Power of Attorney to OM Services prior to the convening of the mediation conference. Such representative, unless an attorney authorized to practice law, must avoid engaging in the unauthorized practice of law.
The Mediator will be neutral in these proceedings and will not offer any opinions, impose any determinations or make any awards between the parties. Moreover, neither the mediation service provider nor the Mediator has a duty to assert, analyze or protect any legal right or obligation of the parties as they pertain to the dispute being mediated under the “Rules & Guidelines.”
Neither will the mediation service provider nor will the Mediator make an independent analysis of the dispute or raise issues not raised by the parties, or determine that additional necessary parties should participate in the mediation. The Mediator will attempt to create an atmosphere that facilitates communication and negotiation between the parties. Parties to the mediation conference will be expected to produce all information reasonably required for the Mediator to understand the issues presented. Such information will usually include full copies of the contract of sale and related addenda. In more complex cases, the Mediator may request that the parties provide written materials in advance of the mediation conference. Materials provided to OMS by the parties, other than the OMS required forms, will not be reproduced or distributed to other parties prior to the mediation conference.
7. ATTENDANCE: (PARTY/IES) Attendance at the mediation conference is limited to the named parties and/or their attorney. All named parties to the contract must be in attendance at the mediation conference and must have the proper authority* to enter into and execute a binding written Memorandum of Understanding setting forth the terms and conditions of their understanding in the event an acceptable resolution is reached. *Proper authority includes parties who would be represented by another person and have granted that person the legal right to represent them in this matter. Parties electing to be represented by another must submit a written Power of Attorney to OM Services prior to the convening of the mediation conference. Such representative, unless an attorney authorized to practice law, must avoid engaging in the unauthorized practice of law.
BECAUSE OF CONFIDENTIALITY RESTRICTIONS, WE DO NOT PERMIT CONFERENCE CALL MEDIATIONS.
ATTENDANCE: (AGENT) Real estate agents are not parties to the contract. You may invite your agent to attend the mediation conference although the agent is under no obligation to attend. If you elect to invite your agent to attend the mediation conference, you must submit complete contact information to OM Services via the Requesting / Responding Party forms prior to the scheduling of the mediation conference. Agents who agree to attend the mediation conference must also adhere to the program’s policies and rules regarding confidentiality and will be expected to sign the Agreement to Mediation & Confidentiality along with all parties to the mediation. Scheduling of the mediation conference will not be predicated upon the availability of the agent to attend the conference.
ATTENDANCE: (OTHER PERSONS) Because mediation is not an evidentiary hearing or an adjudicatory process, attendance at the mediation conference is limited to the named parties and/or their attorney. All other persons attending the mediation conference must be registered with OM Services before the scheduling of the mediation conference or they will not be allowed to participate. Parties wishing to include persons other than agents to attend the mediation conference are responsible for notifying those persons regarding the scheduled conference date, time and location. Scheduling of the mediation conference will not be predicated upon the availability of the other persons to attend the mediation conference.
ATTENDANCE: (OBSERVER) OM Services reserves the right to have an Observer present at the mediation conference as a means to review Mediator skills and evaluate performance. Observers would not participate in the process but will be expected to sign the “Agreement to Mediation & Confidentiality”. Parties will be notified prior to the mediation conference if an Observer will be in attendance.
8. TIMING OF CLAIMS: CLAIMS MUST BE FILED WITHIN 1 YEAR OF ACTUAL CONTRACT SETTLEMENT DATE OR WHEN SETTLEMENT SHOULD HAVE OCCURRED; however the time limitation by which parties must bring claims in accordance with these “Mediation Rules & Guidelines” is to be governed by Maryland law. Consult local legal counsel regarding this issue.
9. TERMINATION OF THE MEDIATION CONFERENCE: The mediation conference shall be terminated by the occurrence of any of the following:
A. By the execution of a “Memorandum of Understanding” between the parties;
B. By a declaration by any party that they wish to terminate the mediation; or
C. By a declaration by the Mediator that in the Mediator’s judgment, “further efforts at mediation would not result in resolution of the dispute”.
10. CONFIDENTIALITY OF MEDIATION CONFERENCES: All OMS/MAR mediation conferences will be held in accordance with and will be subject to the OMS/MAR “Agreement to Mediation & Confidentiality”. All parties, attendees or invitees participating in the Mediation Conference will be required to sign and execute the “Agreement” prior to the commencement of the Mediation Conference. Consistent with State law, the Mediator will abide by the Maryland Standard of Conduct for Mediators during the mediation.
11. PRIVATE SESSIONS (caucus): From time-to-time during the mediation conference, the Mediator may determine that he/she would like to meet with the parties separately. This may be to clarify some matter or to overcome something inhibiting the progress of the mediation. When private sessions occur, the Mediator will consider any discussions to be strictly confidential and will not disclose the contents thereof unless instructed to do so by the party with whom the private session is being held. All discussions held in private session will also be subject to the provisions of the OMS/MAR “Confidentiality Agreement”.
12. MEMORANDUM OF UNDERSTANDING: Should the parties agree to resolve their dispute through mediation, a “Memorandum of Understanding” shall be written by either the legal counsel for one of the parties, or by the Mediator if the parties are un-represented. The “Memorandum of Understanding” shall be signed and dated by all parties agreeing to its terms prior to the conclusion of the mediation conference.
13. JUDICIAL PROCEEDINGS AND IMMUNITY: Neither the mediation service provider nor the Mediator shall be deemed ‘necessary parties’ in any judicial proceedings relating to the dispute being mediated under these “Rules and Guidelines”, nor shall the mediation service provider or the Mediator serving under these “Rules and Guidelines” be liable to any party for any act, error or omission made in connection with this service or the operation of the mediation program.
14. ADMINISTRATIVE FEE: Both Requesting and Responding Parties will be charged an administrative fee which is NON-REFUNDABLE. All administrative fees associated with the scheduling of the mediation conference will be in accordance with the Administrative Fee Schedule in effect at the time that the mediation request is confirmed by OMS/MAR. Administrative fees may be paid by check, money order or charged to a valid MasterCard or VISA account if there is sufficient credit available to do so. CURRENT NON-REFUNDABLE ADMINISTRATIVE FEE: $200 PER PARTY
15: MEDIATOR FEE / EXPENSE: In addition to the Administrative Fee, the Requesting and Responding Parties will be charged a Mediator fee and any travel expenses in addition to the OMS Administrative fee. All Mediator fees or expenses will be in accordance with the Mediator Fee Schedule in effect at the time that the mediation request is confirmed by OMS/MAR. OMS will notify the parties prior to the mediation conference regarding the Mediator fee charges or expenses.
Mediator fees and/or expenses are to be paid directly to
the Mediator the day of the mediation conference, unless otherwise arranged.
Mediator fees may be paid by check or money order.
NO CREDIT CARD PAYMENTS WILL BE ACCEPTED.