What Options Are Available For Resolution Of Real Estate Disputes?
The history of settling disputes has changed over time. The way it used to work is that you would try and negotiate a settlement with the other party and if you couldn’t negotiate a settlement then one party or the other sued the other party and you let a judge and jury decide your fate or the fate of the party suing or the party being sued. In the last 20 or 30 years, Alternative Dispute Resolutions started to become in vogue. Basically what that means is that if you cannot settle a case amongst yourselves whether you have counsel or not but with any kind of 3rd party intervention, then there are steps you can take or procedures that are available to the parties as opposed to going right from the impasse at settlement to litigation and suing in court.
The most common of those two are mediation and arbitration and if you look at the standard Florida real estate contract for the purchase of a residential home, you will see that if there is a dispute and the parties can’t work that dispute out especially when it comes to a deposit, typically the contract will provide that if neither side is willing to release the deposit within a certain amount of time, a standard real estate contract says that it is 10 days then the matter has to be mediated and the parties split the costs of mediation. Mediation is where you have a 3rd party and in the real estate context that will be a real estate attorney who is trained in doing mediations and is certified to do those types of mediation. The mediator attempts to bring both parties closer to a resolution.
The mediator doesn’t have any kind of decision-making authority so the mediator can’t say after hearing the facts I’m listening to the arguments of the party or the party’s counsel, this is what I decide. The mediator says the buyer has a strong point here in A and B and then the seller has a strong point here in C and D and so why don’t you guys try and work this out and try to work out a settlement and if the mediator is successful in doing so, then that resolves the case. That can be done before litigation and then if you are actually in litigation, the parties can voluntarily mediate after litigation begins and a judge can and usually does order mediation before the case goes to trial.
The other alternative dispute resolution that is available is arbitration and there is binding and non-binding arbitration. Basically what you have is specially trained persons that are usually attorneys that are appointed and agreed upon either through the contract or after the contract by both sides to arbitrate. Basically, you have a little mini-trial in front of a person that has the ability to make a decision. If it’s non-binding arbitration, the arbitrator makes a decision and then the losing party, so to speak has so many days to file a lawsuit in court challenging the ruling of the arbitrator or just starting what they call de novo which is to start the suit all over again as if it were never arbitrated. If its binding arbitration, then both parties beforehand understand that they are stuck with the decision of the arbitrator and unless the arbitrator does something illegal, then the losing party cannot go to court to litigate.
So those are the methods and if those fail, then you are involved in a lawsuit and that’s when it’s important to have a seasoned real estate litigator such as myself or another attorney that has the experience in real estate law and the experience in litigating cases, both jury and non-jury trials. Nobody wants to go to court but sometimes it is necessary and so if the other forms of negotiation or arbitration or mediation are unsuccessful, then sometimes court is the last resort and that’s the resort you are going to have to take.
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