In real property litigation practice, you sometimes encounter an attitude of brinksmanship and implied or overt threats by the opposing side to push litigation further toward trial. This is, in part, because often outcomes in the courts can be unpredictable. I have long since believed that the most certain resolution of real property disputes happens outside the courtroom in mediation.
Mediation is a highly structured, confidential and collaborative negotiation process used to settle conflicts outside of court. A mediator is a practicing attorney, retired attorney or former judge with many years of experience, usually in the area of your dispute. A mediator should be able to identify the issues in your case, identify potential solutions and inform the parties of the strengths and weaknesses in their cases. This process “magically” can create an environment where settlement makes more sense than proceeding to trial due to the financial realities of litigation and concessions made during the process.
Mediation can be used for any type of civil dispute, but I’ve found it to be particularly effective in real property cases. I attribute this usefulness to the complexity of real property law cases, the need for focused and specific review of the legal issues in such a case, and the time required to properly address real property law problems. A good mediator can take a boundary dispute, for example, that might cost six figures in the courts and resolve it for a fraction of that cost.
Common cases that might benefit from mediation in the real property law context include buyer‑seller disputes, co‑ownership disputes (partition), boundary disputes between adjacent neighbors, and landlord‑tenant disputes. Buyer‑seller disputes, for example, often are governed by California Association of Realtors (C.A.R.) agreements used in the sale wherein failing to demand or participate in mediation before filing a lawsuit strictly forfeits your right to recover your attorneys’ fees. These contracts are intended to push the parties toward mediation and resolution of disputes prior to clogging courts with unnecessary lawsuits.
Disputes between co‑owners of real property are frequent in California likely because of the value of housing and land. Mediation can unlock these disputes by informing the parties of the realities of the law of partition (a division of the property or sale of property to end co‑ownership) in California and the limited outcomes of litigation. Often one party will either buy out the other parties or be bought out after learning these facts in mediation.
Overall, all real property disputes can benefit from the sharp eye of an excellent mediator, who is skilled in identifying reasonable outcomes. Good attorneys will always look for opportunities to mediate cases at the appropriate time because it can save the client a ton of time, money and stress and bring some certainty in a field wrought with unpredictability.
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