DISCLAIMER: We are not attorneys, and nothing herein is or should be construed as legal advice. As real estate brokers, we recommend expert assistance to the public, including legal assistance where disputes are involved.
CONFLICT HAPPENS: When real estate transactions don’t go as parties plan, they sometimes find themselves in need of conflict resolution services. Many attorneys recommend (and courts often require) mediation to resolve disputes. Typical case examples include earnest money disputes, property management issues, boundary squabbles, property condition differences and contract challenges.
LITIGATION CONSULTING: Sometimes disputes are of a nature or monetary amount that litigation is required to bring about a resolution. Litigation is significantly more expensive and time consuming, and often has an uncertain outcome for both parties.
When litigation involves a real estate licensee, attorneys often require a standard of care expert to provide a professional opinion to assist the court in determining whether a broker’s conduct fell above or below the required standard of care in Colorado expected of a licensee. An attorney in need of a certificate of review or expert opinion should contact Doug Barber directly to determine if his participation in the case is appropriate.
MEDIATION: We provide mediation of such real estate related disputes to assist parties in settling their own conflict. Mediation is a process where the parties have the opportunity to express their feelings and facts in a safe and confidential environment. Doug Barber, the mediator, is a facilitator who assists the parties in exploring options for resolution without taking sides. The parties determine the outcome, rather than having it imposed on them by a judge, jury or arbiter. Mediation is a satisfying and cost effective method of conflict resolution.
COST: For most cases, the fee for mediation is a flat $250.00 per party ($500 total), plus out-of-pocket costs, if any (usually there are none). This covers four hours of the mediator’s time. Longer cases are billed at $100 per hour (very rarely happens). Typically, the parties share the cost equally, but can agree to a different payment division if they wish, as part of any settlement. Payment is due at or before the time of mediation (cash, check or PayPal, please).
AGREEMENT: If the parties reach an agreement that they can live with, the mediator will prepare a written memorandum of understanding, if the parties wish. They can have their legal counsel review, edit or rewrite it prior to signature, after which it becomes a binding agreement between them. If no agreement is reached, the parties can roll the dice in Court (always hard to know who may prevail there, even if the facts are on your side!), and let someone else decide what their fate will be. At that point, the parties will also be dealing with attorney fees and court costs, so the potential financial exposure may be much greater than the initial amount at dispute.
Location: Mediation sessions are typically about 1.5-3 hours (we ask for a 2-hour time commitment), and can either be in-person at our office (located in the northeast quadrant of Interstate 25 and Woodmen Road at 7075 Campus Drive in Colorado Springs), or they can be held virtually via Zoom (particularly when we have out-of-area clients). If the parties have documents that they would like the mediator to review prior to our meeting, they can be emailed to Doug in advance.
ATTENDANCE: The parties' real estate brokers and attorneys are not required for the mediation session; but the parties may bring any relevant advisor they feel will be helpful in resolving the matter. However, the best chance of reaching a settlement is when the parties are actively involved in the dialogue and settlement process. The parties should come with an open mind, and at least consider the idea of compromise. Compromise DOES NOT mean that admission of guilt or wrongdoing, or admission that the other party has a valid position. Sometimes, it is simply a business decision to avoid the hassle and expense of litigation, and to be done with the dispute so the parties can move on with their lives.
CONTRACT CONSIDERATIONS: If the parties have used a Colorado Real Estate Commission (CREC) approved contract form, they agreed in that form to attempt mediation of disputes arising from the contract. The contract requires them to mutually agree on a mediator, and to share the cost of the mediator’s fee. Refusal by a party to attempt mediation may be deemed a breach of contract by the refusing party, resulting in potentially significant additional expense to that party in a court action.
GETTING AGREEMENT TO MEDIATE: Whichever party wishes to invoke the mediation provision should send a written request (the CREC form requires written notices by parties) to the other party requesting mediation (a party’s attorney can prepare one, or the party can use something like the sample letter below). Either party may feel free to call or email Doug Barber with questions regarding the process, but no consulting arrangement will be in place until a mediation agreement is signed.
For more information on mediation, read the Q&A below or choose Request Mediation Now.