Albert Moore, Attorney at Law

How Is Mediation Different From Arbitration In A Business Dispute?


Mediation is different from arbitration in that a mediator does not have any authority to enter a ruling, finding or order. Instead, the mediator is simply there in an attempt to convince the parties to agree to a settlement. Everything is confidential in mediation, so if the parties don’t agree to whatever is discussed, it will not be used against them if the case goes to litigation. After mediation, they’ll break off into separate meetings with the parties and try to point out that there may be a possible weakness in one party’s view of the case. A mediator can encourage that person to consider compromising and asking for less than they had initially. A mediator could tell the party who is being asked to pay that they may not walk away unscathed if the issues are litigated. They may suggest that that party increase their offer in order for both sides to reach an agreement.

With arbitration, there is a third party who hears evidence, takes the testimony and makes the decision. Arbitration is very similar to litigation whereby a judge would hear the matter and make an order. There is binding and non-binding arbitration. If it’s binding, then the parties have to live with whatever the arbitrator decides. If it’s non-binding, the losing party could still petition the court and proceed to litigation.

What Are Some End Results To Real Estate Dispute Litigations?

One of the remedies to real estate disputes involves asking a judge for a specific performance. So, if a seller and a buyer agree to purchase and they sign the contract and the buyer backs out without a legal reason for doing so, then the seller can sue the buyer for damages. Those damages may be compensatory or liquidated. The specific damages are spelled out in the contract. Alternatively, a seller could say that the judge needs to order a specific performance of the contract, which means that the other side would have to go through with the deal and purchase the property.

If a buyer finds out that there are issues with the property and if it is an “as is” contract, then the seller’s obligations would be lower than they would be under a contract that warrants the condition of the property. Even under an “as is” contract, the seller still has to disclose the defects of which they are aware. The defects may not be immediately discernible to the buyer, and maybe not even to an inspector.

Is There A Statute Of Limitations On A Real Estate Case?

In Florida, the statute of limitations is five years on a written contract and four years on an oral contract. However, we also have what are called the statute frauds, which means that if you have contracts for the sale and purchase of real estate, they are not enforceable unless they are in writing. So, typically the statute of limitations is going to be five years. There are exceptions to that when you start delving into condominium and HOA issues, but if you’re strictly talking about the sale and purchase of real estate, it will typically be five years.

Should I Use The Same Real Estate Attorney For The Transaction And The Litigation?

I don’t think it’s absolutely necessary to use the same attorney for the transaction and the litigation. If the party is comfortable with the attorney who handled it, then there is nothing that would bar them from using that attorney again. In fact, it would be advantageous for the attorney to be familiar with the facts that lead to the dispute. It would come down to whether or not the client felt comfortable with the attorney that they used on the transactional end. If they did, then they certainly could use that same attorney to litigate (as long as that attorney does litigate).

For more information on Mediation & Arbitration In Business Issues, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (772) 919-2542 today.

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