Second Mistake: Not Choosing the Right Mediator
Finding the right mediator need not be a challenge. Many of these contracts reference an available panel of mediators specifically trained to interpret the local jurisdiction’s RPA.
If you choose not to use the panel identified in the RPA, find someone familiar with the form and with the real estate laws in your jurisdiction to avoid surprise related to jurisdiction-specific outcomes. For instance, a buyer may be entitled to the return of its entire deposit in some jurisdictions, while in other jurisdictions, under identical facts, the seller could keep the deposit. Further, a liquidated damages provision in a contract may sometimes entitle the seller to keep a deposit, while in other circumstances the liquidated damages provision may be unenforceable. And sometimes, even if enforceable, local laws may require return of some portion of the deposit under certain circumstances. Familiarity with those laws will be important in guiding the parties to an intelligent settlement decision.
Finding a mediator with subject-matter expertise is important. After that, other considerations of price, availability, and mediator style may be considered. But finding a low-priced, available, and stylistically perfect mediator will be meaningless without the requisite expertise.
Third Mistake: Not Preparing a Mediation Brief
Real estate mediations often happen on short notice. And because there is no action pending, the parties may not prepare a mediation brief, or will simply send the mediator a copy of the letters already exchanged. Because this is compelled mediation under the RPA, parties often believe there is no probability of success—why would the outcome be different in mediation compared to the extensive letter-writing campaign already waged? Counsel also may choose to save money by not preparing a brief or may believe disclosing too much in mediation will hamper their ability to later get concessions in litigation. Or counsel may not wish to educate the other side about errors already made.
But a well-written mediation brief, supported by exhibits showing why a party may get the relief sought, is a powerful tool to compel settlement. A brief has multiple purposes and audiences. Regarding the mediator audience member, who is already familiar with the law and the RPA contract, the brief states the critical facts and documents to get the parties to a settlement. The brief may give the mediator the timeline of a revised disclosure regarding the property that led the buyers to rescind the RPA, with emails and perhaps photos of the newly disclosed condition. Regarding the opposing counsel audience, the brief may provide critical information damaging to opposing counsel’s position, or help opposing counsel unfamiliar with the law understand why pressing a position will be unproductive. It may even give opposing counsel a tool to use with his or her own clients to explain why they should adjust their expectations.
Finally, a mediation brief is an opportunity to frankly and fairly explain to the parties on the other side why they have risk, or why your client took certain action. While the brief is not sent directly to opposing parties, the information in the brief will end up with the opposing side regardless, a key to settling. Using a brief to explain how a new disclosure affected a buyer’s willingness to purchase a home can help an opposing party understand a position, even while not agreeing with it. And explaining the law in your jurisdiction in layman’s terms can help parties appreciate their exposure.
Bonus Mistake: Not Sharing Your Mediation Brief
An attorney who does not appreciate there are multiple audiences for the mediation brief may choose not to share it, believing the mediator is his only audience. Or the attorney may withhold it to avoid giving the other side a roadmap, the evidence, or the arguments they will face at trial. But the mediator can only meaningfully use information that may be shared with the other side. So, either the information will ultimately be shared with the other side regardless, or it will be useless.
There are only two places a compelling argument or damning piece of evidence may be used to get money. One is in trial or arbitration and the other is in settlement discussions. In the modern world of litigation, evidence will be disclosed in discovery, so withholding it in mediation makes little sense. Arguments should be stress tested well before trial. Compelling arguments will win out. Lesser ones should be exposed and discarded early.
Share your briefs.