by Alex Long
Take control when it seems you have lost control; and events and relationships appear to spiral beyond repair. The parties, working with a mediator, themselves can create solutions, which gives them control over the outcome.
Absent participation in mediation, a dispute over commission might have to go to arbitration, if it meets the requirements. At arbitration, a panel, in a hearing, which is generally adversarial between the parties, will make the final decision. And the panel makes the final decision, subject only to a very limited review. A court system of litigation is excruciatingly expensive both in terms of money and the emotional toll.
Mediation, in contrast to a formal hearing, presents another path: the parties must commit to not an adversarial posture, but a cooperative spirit, a conciliatory atmosphere, to resolve sharp differences. Adversarial or cooperative, the choice is stark. The parties must at least try to formulate solutions. Differences and hurts are real and must be addressed. How the wounds are made worse or healed, is found in the choice of the process chosen.
Attitude is crucial. A format or framework to work within is priceless. Mediation is voluntary and provides a mechanism, by which the individuals can jointly work to salvage a solution. A process and a mediator are provided through your REALTOR® Association, FAAR, if conditions are met. Article 17 of the NAR Code of Ethics contains the basics. CEO Pat Breme can be consulted as to whether circumstances warrant mediation thru FAAR. If not, private firms offer mediation. Again, the process chosen can make a huge impact upon outcome.
The mediator must be someone the parties trust and who can provide fair, unbiased leadership in leading the parties to effective communications and hopefully a mutual resolution. Only the parties themselves can arrive at the resolution of differences; the mediator cannot command or force any solution. Mediators cannot provide any legal advice or other expert opinions such as accounting, etc. The parties can terminate the mediation at any point. Individuals can consult legal counsel. Confidentiality must be maintained by the parties and mediator. Information in a mediation cannot be used by one party against another at a formal hearing or other venue.
Although not a ‘get out of jail’ card, mediation might be possible for some ethics controversies. Not eligible are ethics issues of betrayal of public trust: “…misappropriation of client or customer funds or property, willful discrimination, or fraud resulting in substantial economic harm.”; and/or as the standards are updated by NAR. It is possible for remedies to range from a simple but sincere apology to requirements for financial payments, fines, completing education, or other actions.
Settlements must be in writing. The parties can consult legal advice before agreeing to the document. Settlements are enforceable by judicial action, should the party prevail.
Voluntary action, a choice to cooperate, is the basis for mediation. What holds it all together can be an amalgamation of hope overcoming fear of the unknown imposed by others; a sincere desire to take a better path; or perhaps an ego that compels the protagonist to do a better job at fixing a problem than others who are unknown and probably not as smart as themselves.