This article is Part 2 of 3 on legal mediation in real estate written by contributing author, Nate Bernstein, Esq., of LA Real Estate Law Group. Read Part 1.
First, What is Mediation?
Mediation is the process where opposing parties and their attorneys sit down with a professional mediator to try to settle the entire case or perhaps part of a case in a quiet office setting. The trial judge may set a deadline to complete mediation. Mediation can last 2 hours or it can last as long as 2 days or longer – it all depends on whether the parties are making progress in coming to a resolution. Generally speaking, mediators are licensed attorneys or retired judges who have some meaningful experience with the type of case that is being mediated (If they don’t have meaningful experience in the area of law, the parties have perhaps not chosen the right mediator). The end product of a successful mediation session is a written settlement agreement that is signed by the parties.
4 Reasons You Should Consider Mediation:
- “Stop the bleeding”: Mediation is important because it provides a focused opportunity for all parties to reduce and stop their litigation costs if in fact the case can settle.
- Save time: Being a party in a litigation case can also be a huge investment of time- so saving time is another important factor in trying to settle case through mediation.
- Start a meaningful dialogue: If the case cannot settle in the mediation process, the parties may at least move toward eventual settlement, and perhaps, narrow the issues, and start a meaningful dialogue.
- Get an expert’s opinion: In my view, effective mediators can provide their opinion on the risks of going to trial, merits of the claim, and strength of defenses- and this can be done in a discrete private manner away from the scrutiny of an opponent or the trial judge- this approach can influence parties to rethink their case strategy and settle the case in mediation.
How it Works:
- In the mediation process, parties and their attorneys come to a central office location, and usually sit in separate waiting room offices or “caucus camps.” Sometimes at the beginning of a mediation session- but not always the case, the mediator will start the session by bringing all parties and their attorneys into one room to break the ice, discuss the protocols, the rules, and to sign some forms.
- Then the mediator shuttles between the camps to try to work out a basic agreement in principal.
- Settlement agreements take different shapes and formats. A settlement can be “global”- resolving all claims between all parties. A settlement can be “partial” or “piecemeal” in which case only certain parties will settle and or only certain claims or issues can settle.
I have participated in more than 100 mediations in my career. These cases range from real estate title disputes, business and commercial litigation, contract disputes, employment litigation, RICO cases, and bankruptcy litigation. I recommend using mediators who are licensed and experienced attorneys. It is my view that non-attorneys tend to miss important issues, don’t know all of the rules of civil procedure or the substantive law, and you want all your bases covered in settlement agreement when you participate in mediation.
Mediators are not hired guns, and are not paid directly to provide legal opinions to any one side, but hearing a mediator’s viewpoint in the caucus sessions is undoubtedly valuable to a party and the party’s counsel.
The author, Nate Bernstein, Esq., is the Managing Counsel of the LA Real Estate Law Group, a Los Angeles based real estate and business law firm. You can contact Nate at (818) 383-5759 or visit www.larealestatelawgroup.com. The firm serves clients throughout Southern and Northern California. Nate Bernstein is a 22 year veteran Los Angeles real estate and business attorney, transaction and trial lawyer. Mr. Bernstein also has expertise on bankruptcy law, the federal bankruptcy court system, creditor’s rights, and debtor’s bankruptcy options. He previously served as Vice President and In House trial counsel at Fidelity Title Insurance Company, a Fortune 500 company, and in house counsel at Denley Investment Management Company, a large privately held company. Nate Bernstein created www.laquiettitleattorney.com, a leading educational resource on quiet title real estate litigation. Nate has personally litigated more than 40 real estate trials, and has settled more than 200 complex real estate and business cases.