MEDIATION REQUEST

What is Mediation? Mediation IS an informal dispute resolution process whereby the Mediator (neutral third party) facilitates the reaching of an agreement satisfactory to all parties. Mediation IS NOT an adversarial proceeding. There is no determination of guilt or innocence. Mediators do not decide cases; they help the parties come to their own agreement. They may carry representations back and forth between the disputants, but they do not argue on “behalf” of either complainant or respondent. Mediation IS a “win-win” proposition where both sides come away with something, having given something, and having aired their feelings. Should the parties not reach an agreement, either party may request arbitration under the Shasta Association of REALTORS® (“Association”) rules. The purpose of the Association is to assist members of the Association with clients that request dispute resolution per their contractual agreement under the California Association of REALTORS® (“C.A.R.”) Standard Real Estate Forms.

Mediation is Confidential. Most parties are more receptive to open discussion in mediation if they are assured the session will be kept confidential. If the parties wish to keep the session confidential so that the Mediator will not be required to testify in subsequent arbitration or ethics hearings or lawsuits, the parties must agree to this confidentiality in writing. The written consent must be in a form that complies with Evidence Code Section 1152.5. Having agreed that the session is to remain confidential, the parties are free to openly discuss various issues without the fear that the Mediator will turn the information over to the Grievance Committee or use it against them in the event mediation is unsuccessful and the matter goes to arbitration. In the event the parties do settle their dispute and wish to enter into a binding agreement, the agreement must also specifically state that the agreement itself may be sued in court for enforcement purposes. This is in the rare event that a party agrees to a mediation settlement, but subsequently decides not to follow it. In order to enforce the agreement, it would be necessary to introduce it in court.

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Mediation Guidelines and Terms. 1. The purpose of mediation is to assist members of the Association to settle disputes swiftly and informally. 2. If the parties do not settle their dispute at the mediation conference, they shall maintain their right to an arbitration hearing under the rules and procedures used by the Association for arbitration. 3. If the parties wish for the mediation session to remain confidential, they must agree in writing. This will ensure that mediators involved in the sessions will not be required to testify or appear in subsequent ethics or arbitration hearings or lawsuits involving the same dispute. 4. Upon receipt by the Association of a request for arbitration, the Association shall advise the parties of the voluntary mediation process. Each party seeking mediation shall submit a completed arbitration application or response and a copy of the documents shall be given to each party. The Association may also process a mediation request even if no party has filed for arbitration in which case it is not necessary for an arbitration application or response. However, if no arbitration application is filed, the parties will still put a description of their dispute and relevant facts in writing for the benefit of the mediators. All parties will be given copies of these descriptions. Parties need also to be aware of the time period (180 days) for filing an arbitration at the Association. 5. Any party may elect to bypass the mediation conference in which case the matter will be scheduled for an arbitration hearing. If some but not all parties agree to mediation, the parties may agree to mediate with the consenting parties and proceed to arbitration with the remaining parties. 6. If the parties elect to submit the dispute to a mediation conference, the Association shall forward copies of the complaint and response (or description) with supporting documentation to the Mediator. The Association will provide a list of mediators to the party requesting the mediation conference. The responding party has the right to challenge the mediator that has been selected. 7. Once a date for the mediation conference has been determined, there shall be NO postponement, except at the discretion of the Mediator. The party that has requested postponement will be charged with a fee equal to one (1) hour for conference time and a $75.00 rescheduling fee. If any party fails to appear, an arbitration hearing shall be scheduled to hear the dispute between the appropriate parties. 8. If the parties come to an agreement, they shall execute a Mediation Agreement and Stipulated Arbitration Award or other written agreement reflecting their settlement. The Mediator shall forward the form or agreement to the Association. If the mediation agreement so

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provides the Association will cancel any arbitration filed and refund the arbitration filing fees according to the usual procedures. If the parties do not resolve the dispute, the Mediator shall advise the Association that mediation was not successful and the Association shall proceed to schedule an arbitration hearing. Mediation Rules and Procedures. A. Agreement of Parties: 1. These Mediation Rules and Procedures shall apply when the parties have agreed in writing to mediation under the C.A.R. Purchase Agreement and Joint Escrow Instructions, Listing Agreements, and/or Membership Contract Agreements. By mutual written agreement of all the parties to the claim, any specific provision of these rules and procedures pertaining to mediation may be modified. B. Initiation of Mediation: 1. Any party may initiate mediation under these rules and procedures by completing, signing, and mailing to the Association an all other parties, a Request for Mediation Transmittal Form (“Mediation Request”). Such form shall contain or be accompanied by the following information, to the extent known or readily available: a)

b) c)

d) e) f)

A fully executed, true copy of the agreement, i.e., Purchase Agreement and Joint Escrow Instructions, Listing Agreement, and/or Membership Contract Agreement, containing the mediation clause; A copy of such other written agreement invoking these Mediation Rules and Procedures; In the absence of a contract clause or other such written agreement, a written request by any party seeking to have the mediation vendor attempt to persuade one or more of the others to submit an existing dispute or claim to mediation under these rules and procedures; The names, addresses, and telephone numbers of the parties to the case, including the name of the parties’ insurance company; Nature and amount of the claim (brief statement of the facts that give rise to the claim and the damages of relief sought); and Preferred place and time of hearing.

C. Selection of Mediator: 1. The person filing for the mediation conference shall appoint a qualified mediator from the List of Mediators provided by the Association. The respondent has the right to challenge the selected mediator. 2. No person shall serve as a mediator in any dispute if that person has any financial or personal interest in the results of the mediation unless, after full disclosure, the parties have given their written consent.

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D. Time and Place of Mediation Conference: 1. Within ten (10) days of his or her appointment, the Mediator and the parties shall set the date, time, and place of the mediation conference provided, however, such date shall not be more than sixty (60) days from date of receipt of the Mediation Request, and shall allow for not less than twenty (20) days advance notice of the conference, which notice shall be given by the mediation vendor to all parties. E. Conduct of Mediation Conferences: 1. At the mediation conference, the parties will be expected to produce all information reasonably required for the Mediator to understand the issue presented. Such information will usually include relevant written materials and a description of any witnesses and what each could testify to. For more complex cases, the Mediator may ask the parties for written materials or information in advance of the mediation conference. 2. At the mediation conference, the Mediator will conduct an orderly settlement negotiation. Parties at the mediation conference shall have authority to enter into and sign a binding written agreement to settle the dispute. The Mediator will be impartial in such proceedings and has no authority to force the parties to agree to a settlement. F. Representation by Counsel: 1. Any party may be accompanied by and represented at the mediation conference by counsel. In the interest of fairness, however, a party who intends to be represented by counsel shall notify the mediation vendor and other parties of such intent at least ten (10) days in advance of the mediation conference. G. Confidentiality: 1. No aspect of the mediation shall be relied upon or introduced as evidence in any arbitration, judicial or other proceeding, including, but not limited to: a) b) c)

2.

Views expressed or suggestions made by a party with respect to a possible settlement of the dispute; Admissions made in the course of the mediation; and Proposals made or views expressed by the Mediator or the response of any party thereto.

No privilege shall be affected by disclosures made in the course of mediation.

3. Disclosure of any records, reports, or other documents received or prepared by mediation vendor cannot be compelled. 4. The mediation vendor shall not be compelled to disclose or to testify in any proceeding as to information disclosed or representations made in the course of the mediation or communication to the Mediator in confidence.

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H. Mediated Settlement: 1. The mediated settlement must be reduced to writing by the parties or by the Mediator (if the Mediator is an attorney), then signed and dated at the mediation conference by all parties agreeing to its terms, but in no event shall the settlement be signed later than ten (10) days after the conclusion of the mediation conference. I. Judicial Proceedings and Immunity: 1. Neither the mediation vendor, nor the Mediator, nor the National Association of REALTORS® (“N.A.R.”) or any of its member associations, shall be deemed “necessary parties” in any judicial proceedings relating to mediation under these Mediation Rules and Procedures. Neither the mediation vendor, nor any mediator nor the N.A.R., serving under these procedures shall be liable to any party for any act, error or omission in connection with any service or the operation of the N.A.R. Mediation Program. J. Mediation Fees: 1. The Association charges $75.00 to file a mediation. This fee covers the administrative cost of sending correspondence and room rental. The Mediator will charge a separate fee for handling the mediation. A list of mediators will be provided for the applicant to select a mediator. This list will contain the fee schedule for each mediator. Please check with the mediator prior to scheduling your mediation conference to see if additional fees will be required for mediations that ae held over the allotted time. K. Timing of Claims: 1. The time limitation by which parties must bring claims in accordance with these Mediation Rules and Procedures are to be governed by state law. Local counsel should be consulted regarding this issue.

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Return completed request to: Shasta Association of REALTORS® Mediation Department 840 Remor Street, Redding, CA 96002 (530) 223-0410 / (530) 223-0974 - F

REQUEST FOR MEDIATION TRANSMITTAL FORM (Please type or print clearly.) Date Submitted: _____________________ By signing below, I hereby acknowledge that I have read and understand the Association Mediation Guidelines and Terms and Mediation Rules and Procedures, and hereby agree to mediation as outlined therein with the following parties: Complainant(s) (Initiating Party): Name: _____________________________________________________________

Telephone: ___________________________________

Name: _____________________________________________________________

Telephone: ___________________________________

Street Address: _______________________________________ City: ___________________ State: ____________ Zip: _____________ Respondent(s) (Responding Party): Name: _____________________________________________________________

Telephone: ___________________________________

Name: _____________________________________________________________

Telephone: ___________________________________

Street Address: _______________________________________ City: ___________________ State: ____________ Zip: _____________ Complainant(s) Broker: Name: _____________________________________________________________

Telephone: ___________________________________

Name: _____________________________________________________________

Telephone: ___________________________________

Office/Brokerage Name: _____________________________________________________________________________________________ Street Address: _______________________________________ City: ___________________ State: ____________ Zip: _____________ Respondent(s) Broker: Name: _____________________________________________________________

Telephone: ___________________________________

Name: _____________________________________________________________

Telephone: ___________________________________

Office/Brokerage Name: _____________________________________________________________________________________________ Street Address: _______________________________________ City: ___________________ State: ____________ Zip: _____________ 6

Request for Mediation Transmittal Form Continued

Address of Subject Property: Street Address: _______________________________________ City: ___________________ State: ____________ Zip: _____________ Has this purchase closed escrow? Yes _____ No _____ If so, please provide date: _____________________________________ Have you contacted an attorney or started litigation on this matter? Yes _____ No _____ Is there money involved in your request? Yes _____ No _____ If so, please provide amount: __________________________ What do you expect as a result of the mediation? ____________________________________________________________________ _______________________________________________________________________________________________________________________ _______________________________________________________________________________________________________________________ Attached is a copy of: _______ Purchase Agreement and Joint Escrow Instructions _______ Real Estate Transfer Disclosure Statement I/we have selected _____________________________________________________ to mediate the within dispute. (Contact Association for list of mediators.)

I am/we are available for mediation on the following dates: 1st choice: ________________ 2nd choice: ________________ ________________________________________________________________________________ (Complainant Name & Telephone)

_______________________________ (Dated)

________________________________________________________________________________ (Complainant Signature) ________________________________________________________________________________ (Complainant Name & Telephone)

_______________________________ (Dated)

________________________________________________________________________________ (Complainant Signature) Please provide a brief summary of your case on the following pages, and attach additional pages and/or documentation, if necessary. _______________________________________________________________________________________________________________________ _______________________________________________________________________________________________________________________

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Case Name: _________________________ vs. _________________________ Summary of Case

Request for Mediation Transmittal Form Continued

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