Preparing for a real estate mediation can be stressful, but a well prepared concise brief will not only help the mediator to understand your case, it will also help you to organize your thoughts and positions. Here, we discuss what makes a good mediation brief and some suggestions for the same.
Real estate disputes are all too common, especially in coastal Orange County such as Newport Beach and Costa Mesa, where real estate values are high and thus the accompanying disputes tend to equally reflect those values. As discussed in-depth in our prior article(s), mediation is a requirement in most real estate contracts, especially any involving the ubiquitous California Association of REALTORS® Residential Purchase Agreement (“RPA”).
WHAT IS A MEDIATION BRIEF
Once you have your mediation scheduled, you will want to write and submit a “mediation brief,” which is simply a letter or email outlining your positions, your argument and what you are seeking.
It can be as simple as a short email, or a fancy legal document on numbered lined paper (“pleading paper”) and include a host of exhibits.
Your mediator likely prefers something simple, but if you believe more is required, most mediators will happily review whatever you send them, but perhaps read their instructions first to avoid additional billing time if you send them a novel to review.
WHERE TO GET STARTED
Take a few minutes to think about your case and think if there are any documents (or “exhibits”) that will be helpful for the mediator to review. Organize your thoughts for a few minutes. Replay the whole ordeal in your mind. Then put that on paper, perhaps in an “outline” you handwrite on a pad of paper or bullet point on a word processor. Note the key issues, key events and any key documents. Perhaps print copies of those documents and/or review them on the computer and organize in a folder to send as eventual attachments to your brief. Take some time to organize your thoughts in an informal ‘to do list’ or ‘checklist’ on paper or computer.
EMAIL OR FORMAL LETTER
It makes no difference if you choose to send an email or formal letter, but a letter perhaps looks nicer and gives you a little more freedom to write, save, review, etc.
In any event, start a new clean email or blank word processor document, put your name and contact information at the top, put the property address (the dispute address) on the subject line and address the brief to the mediator. It is utmost helpful if you identify yourself and your role in the subject line or opening sentence, i.e. “This brief is submitted by X and Y, the sellers of 123 Main Street.”
WRITING THE BRIEF
Next, think of this simple law school principle when writing your brief, “IRAC.” Issue. Rule. Analysis. Conclusion. These concepts are discussed further below:
Issue – What is the issue?
Are you contending a deposit is owed, some fraud occurred, a sale should have gone through? Whatever the issue, you should start off with a simple statement about the dispute.
Let’s use a hypothetical dispute surrounding a cancelation and return of the security deposit. In that case, you might start by stating, “We are owed our deposit of $X because we duly canceled the contract.” Or perhaps, “We respectfully demand a return of our initial deposit due to X.” The Sellers might have a brief stating something like, “We are entitled to keep the buyer’s deposit because they canceled the contact after removing contingencies and the evening before escrow was due to close.”
Any simple one or two line statement summarizing the dispute and your position is key. Start off with a clear understanding of the dispute (the history and background come later). Make sure anyone reading your brief will know in the first few lines what the dispute is about. Do not bury the ultimate goal (i.e. return of the deposit, keeping the deposit, etc.); open with it.
Rule – What is the rule?
You do not need to be overly concerned about this, as your mediator is presumably well versed in real estate disputes, real estate law and real estate contracts (or you should consider seeking a mediator that is). But it is always helpful to address some specific legal or contractual points, if you have them. Such as, “the contract, paragraph X, allowed for 17 days of contingencies.” Or perhaps if a fraud dispute, you can generally note, “Sellers are required to disclose material facts.” Again, you should not be overly concerned about this portion of your brief if you have a mediator familiar with real estate disputes.
Analysis – Analyze the facts of your case with the rule(s) at issue.
This is where you want to provide some background information and perhaps a brief timeline of events, and ultimately explain what happened. For example, in our deposit dispute hypothetical, perhaps the contention is something like, “After discovering mold in the home during our home inspection, and prior to removing our inspection contingencies, we elected to cancel the contract. Since we canceled before our contingencies had been removed, we are entitled to our deposit.”
Whatever “side” you are on, you want to provide some background and/or a timeline as to what happened. Keep it simple. Your mediator does not want a history of time, but the key points, deadlines, events, etc. will be utmost helpful.
If there are documents, this is a good time to reference. The contract is always ideal to include, but do not bombard the mediator with emails or superfluous documents unless key to your point. For example, if a dispute surrounds the removal of contingencies, and you are the seller, you would certainly want to include the contingency removal document(s). If a non-disclosure type dispute, and you are the buyer contending some undisclosed damage, photos and/or repair estimates of that damage are most helpful.
If there were specific statements made, or specific disclosures provided (that are at issue), include those (i.e. the “Seller Property Questionnaire” and/or “Transfer Disclosure Statement” are key disclosure documents in most transactions and are critical in any fraud or non-disclosure dispute, to demonstrate that certain items were, or were not, disclosed).
Conclusion – What do you want?
Concisely summarize your position, in much the same way you opened the brief, i.e. “As detailed above, we are entitled to the return of our $X deposit.”
If there have been any settlement discussions or history of attempts to resolve, inform the mediator. (i.e. “We previously demanded the seller pay $X, but they have thus far not responded.”)
It is also sometimes appropriate to discuss settlement options, if you feel appropriate, such as, “We are willing to accept final settlement of $X if the case is resolved at mediation.” Sometimes you may not want to begin actual negotiation in your brief, but it can be most helpful to inform the mediator of your desire to work on options to resolve. After all, if both sides come into the mediation and refuse to budge, then the case will simply not settle. Mediations rarely result in one side getting 100 percent of what they want; rather, by definition, if a settlement is achieved, there is typically some compromise.
DO I SEND MY BRIEF TO THE OTHER SIDE?
This author strongly suggests that you do. We cannot count the number of “confidential mediation briefs” we receive, which often seem counterintuitive. Let the other side know your position. Let the other side know what you want. If you send a “confidential brief,” the mediator should not share it with the other side, but the whole point of mediation is to discuss the dispute, in a confidential setting, and seek a mutual resolution. By definition, you have to explain your respective positions to each other for this to occur. Your mediation will most likely involve discussing all aspects of your mediation brief with the other side. Thus even if the document itself is not turned over, the whole point of the mediation process is to air out the other side’s positions and discuss. So if you say you are entitled to the deposit in your brief, the mediator will certainly go to the other side and explain that. So, why not let them see the brief? Our humble take. That said, we know the process can be stressful and sometimes people want to put their candid thoughts into their brief without fear the other side will see the writings.
If you do elect to keep your brief “confidential,” consider sending an alternative version of the brief to the other side, at least outlining the basics of your position and your demand. This is often known as a “demand letter” and routinely sent by lawyers to the adverse party prior to mediation.
Writing a mediation brief is the perfect way to organize your claim and present your positions to the mediator. Less is generally more. You do not need to reference every detail, more of a roadmap of the dispute and what you would like to accomplish in the mediation.
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About the Author
Author Devin R. Lucas is a Real Estate Attorney, Real Estate Broker and REALTOR®. Mr. Lucas is a professional real estate mediator available with the California Association of REALTORS® Mediation Center for Consumers.
Mr. Lucas’ real estate practice specializes in Newport Beach, Costa Mesa and Orange County coastal communities, serving individual and investors in residential real estate.
Mr. Lucas is a property owner, landlord and operates a small, local, property management business.
Lucas Real Estate
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