Mediation and Arbitration, Not Litigation, Can Settle Many Disputes

Question: At the time that we purchased our new Gilbert home six months ago, our landscaping plan provided for a swimming pool in the backyard. We now have the money to build the swimming pool. Due to an incorrect survey by our homebuilder, however, the boundary wall between our home and our neighbor’s home is in the wrong location. The boundary wall now has to be moved ten feet further into our backyard, and we can now only build a “large bathtub” in our backyard. Our homebuilder has refused to take any responsibility for the loss in value to our home because of the incorrect survey. The purchase contract with the homebuilder requires mediation of any dispute with the home buyer. Will this mediator have specific expertise mediating disputes between homebuilders and homeowners?

Answer: Probably not. Most mediators are attorneys or retired judges who usually don’t have expertise in a specific area, e.g., an incorrect survey or a construction defect. A mediator’s expertise in a specific area, however, is not an important factor in settling disputes at mediation. People skills and mediation experience are the most important qualities of a good meditator. In addition, specific classes on mediation should have been taken by the mediator, e.g., Pepperdine University in California has a two-day seminar on mediation training.

Mediations are usually “shuttle diplomacy,” i.e., the mediator goes back and forth between the parties and their attorneys in separate conference rooms. Even if unsuccessful, the mediation should be a great learning tool because mediation memorandums are exchanged between the parties, and the mediator should have helpful comments for both parties. Finally, after an unsuccessful mediation, there still may be a quick settlement, even the next day. Bottom line: More than 90% of real estate or other disputes settle before a trial.