Most real estate
transactions proceed fairly smoothly, with minor disputes usually resolved
through negotiation. However, buyers and sellers sometimes find themselves
confronted with disputes that they are unable to resolve by themselves.
The real estate purchase
contract usually includes a mandatory mediation clause. Mediation is a
non-binding, affordable and confidential process that often allows
the parties, working with a mediator of their choosing, to reach a
mutually agreeable settlement and thereby avoid the time, expense and
uncertainty of arbitration or litigation.
If
mediation fails to resolve the issues in question the
parties must arbitrate or go to trial. Most real estate
contracts give the parties the option of agreeing up front to arbitrate disputes
that might arise between themselves. Although the parties can always agree to
arbitrate disputes after they arise, at that point one or both parties may
not be willing to do so.
Arbitration occurs outside
of the court system. The parties submit arguments and evidence to an
arbitrator, usually a retired judge, who then renders a decision. By
agreeing to arbitration the parties give up their right to appeal except
as provided by California law.
Because arbitration is
not governed by the formal rules of evidence and procedure used in court
trials, arbitration hearings often take less time than court trials.
Court cases may take years, and if appealed can take even longer. In
contrast, the entire arbitration process often can be completed in a
few months, making arbitrations significantly less expensive than
litigation.
Like any important decision
affecting your legal rights, you need to think carefully before deciding on
arbitration. Consult your attorney for guidance in evaluating the pros and cons
of arbitration.
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