Should we Invest Money in a Private Full-time Mediator?

Question: Three months ago we bought a beautiful older home in north Phoenix from a seller who had made significant attractive renovations to the home such as granite countertops. We found out after moving into the home, however, that the essential items of any home, the electrical wiring and the plumbing, are in terrible condition. The seller lied to us about these two items on the Seller’s Property Disclosure Statement, and our home inspector was apparently “asleep at the wheel.”

The cost to repair these two items will be at least $60,000. The seller refused to mediate as required by our purchase contract, so we filed a lawsuit in Superior Court which is scheduled for trial in three months. Our trial judge has ordered us first to go to mediation, and has appointed a judge pro tem to conduct this mediation. This judge pro tem is free and has to be a practicing attorney with at least 10 years’ experience. Our lawyer, however, does not want to use this judge pro tem for mediation. She wants us to hire a private full-time mediator who is a retired judge with experience and training in mediation. This retired judge will charge $450 an hour to be split between the parties. We have paid lots of legal costs recently, and we like the word “free.” What do you recommend?

Answer: In your $60,000 lawsuit, if there is no settlement before trial, the cost in the next three months for each side to go to trial will probably be another $50,000 (for a jury trial, probably another $100,000). Therefore, settlement at mediation is almost mandatory. Although your appointed judge pro tem [“tem” is Latin for “tempore,” or temporary] could be an excellent mediator, the additional expense of a retired judge who is an experienced full-time mediator is recommended.

Note: Private full-time mediators with expertise in a specialized area of law have been flown in from other states like California and Pennsylvania to mediate large Arizona lawsuits.