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Although no party to an arbitrable matter can be required to submit to mediation (unless REALTORS® [principals] are required by their Board to mediate otherwise arbitrable disputes pursuant to Article 17) and mediation is not intended to be a substitute for the arbitration procedures described elsewhere in this Manual, mediation can be a useful tool in resolving the conflicts that arise involving Board Members and their clients and customers. Mediation must be available in instances where arbitration would be provided under Part Ten, Section 44 of this Manual and a Board can require REALTORS® (principals) to mediate otherwise arbitrable disputes pursuant to Article 17. Mediation can resolve disputes, promote amicable resolutions, and reduce the number of cases requiring the more formal and complex arbitration procedures of the Board, thus reducing the time and effort required of Board Members serving on the Professional Standards Committee. (Revised 11/11)
Benefits of Mediation
Mediation is an attractive alternative to arbitration because mediation:
- works; most disputes are successfully resolved
- there may be low or no cost when compared to arbitration
- can be scheduled in days as opposed to months and mediations are typically shorter than formal hearings
- is a flexible process allowing the parties to determine their solution and maintain control of the outcome as opposed to having arbitrators control the outcome
- provides parties with an opportunity to maintain, and in some instances, improve relationships
- improves communication and clarifies misunderstandings because parties come together and talk with a trained neutral mediator
- allows parties to discover and address their true interests
- moves beyond different views of fact and law
- allows for a maximum range of creative solutions beyond win/lose
- is as binding and enforceable as an arbitration award if a mediated resolution is reached (Adopted 11/23)
Selection of Board Mediation Officer: Conducting successful mediation procedures requires tact, diplomacy, and a sense of equity. Careful consideration should be given by the Board President (or the Board of Directors of the Board) in selecting the Board’s Mediation Officer. Many Boards will find that one Mediation Officer will be sufficient. However, in large Boards, consideration can be given to appointing a standing panel of two, three, or more Mediation Officers depending upon the number of requests for arbitration normally filed in the course of a year.
A Board Mediation Officer should be appointed for a term of at least one (1) year. Consideration can be given by the local Board to making the appointment for two (2) or even three (3) years. It is strongly recommended that any individual serving as a Board Mediation Officer have extensive prior experience on the Board’s Grievance Committee, Professional Standards Committee, and/or Board of Directors. The Mediation Officer should be thoroughly conversant with the Board’s arbitration procedures as well as with the real estate rules and regulations of the state. It is recommended that the Mediation Officer not serve concurrently as either an officer or director of the Board, or as a member of the Grievance Committee, or as a member of the Professional Standards Committee. If Mediation Officers are members of the Grievance Committee, they shall not participate in the consideration of requests for arbitration or ethics complaints arising out of the same facts and circumstances giving rise to a matter they attempted to mediate. If Mediation Officers are members of the Professional Standards Committee, they shall not serve on an arbitration Hearing Panel in cases where they had initially attempted to resolve the dispute prior to an arbitration hearing, or on an ethics Hearing Panel in cases where an ethics complaint arises out of the same facts and circumstances giving rise to a matter they attempted to mediate.
Although ombuds and mediators who serve in either capacity are not part of a tribunal, they nonetheless may not participate in the deliberation of any tribunal on the same matter for which they provided the ombuds or mediation service. An ombuds may not serve as a mediator on the same matter for which they provided the ombuds service. (Adopted 11/22)
The Mediation Officer should be someone widely respected for fairness, experience, and impartiality. Only to the degree that all parties to the mediation can be confident that the mediator is impartial will mediation procedures be successful. By having more than one Mediation Officer, assignments can be made to utilize a particular individual whose experience, abilities, and relationship renders him/her most appropriate for the particular assignment. (Revised 11/91)
Mediation is Mandatory or Voluntary as Determined by the Board: It must be understood by all parties that participation in mediation procedures is entirely voluntary unless REALTORS® (principals) are required by their Board to mediate otherwise arbitrable disputes pursuant to Article 17. If the Board or Association does not require REALTORS® (principals) to mediate otherwise arbitrable matters, the parties should be offered the opportunity and encouraged to participate in the mediation process in good faith, and, further, encouraged to abide by the determination. The parties to mediation should be aware that they may withdraw from the process at any point prior to reaching an agreement. Any offers of settlement that were not accepted or any suggested resolution proposed by the Mediation Officer that was not accepted will not be introduced as evidence nor considered in any manner should the matter require arbitration by the Board’s Professional Standards Committee. However, if the parties agree to a settlement of the dispute, and the settlement has been reduced to writing and has been signed by all of the parties, the matter is deemed resolved and cannot be the subject of a subsequent arbitration hearing. In the event either of the parties later fails to abide by the terms of the settlement, the matter may not be arbitrated; instead, the other party should be encouraged to have the settlement agreement judicially enforced by a court of competent jurisdiction. (A sample settlement agreement is included as Form #A-17, in Part Thirteen of this Manual.) (Revised 5/12)
Need for Adequate Notice: In mediation the need for due process remains. Generally, there will be no need for the parties to be represented by legal counsel nor for the Board to have legal counsel present at a mediation proceeding. However, since mediation is an attempt to bring the disputing parties together in an informal setting to resolve their differences, every effort should be made to ensure that the parties are provided with adequate prior notice (at least ten [10] days) and that the time and location of the proceeding is mutually convenient to all involved. However, this requirement shall not preclude parties to a dispute waiving such notice and agreeing to mediate at any time agreed by all parties. (Revised 5/12)
Initiation of Mediation Proceedings: The Secretary (or Executive Officer), upon receipt of a request for arbitration, will advise all parties of their mediation obligations and options to participate in mediation prior to or after review of the arbitration request by the Grievance Committee. If mediation is voluntary and the parties agree, the matter will be referred to the Mediation Officer, who will mediation. When mediation is voluntary and the mediation attempt is unsuccessful, or if either of the parties wishes to discontinue the mediation process for any reason, then mediation will be terminated and the request for arbitration will be referred to the Grievance Committee for review. Regardless of whether mediation is voluntary or mandatory, if either party requests that mediation be deferred until after the arbitration request can be reviewed by the Grievance Committee, the arbitration request will be referred to the Grievance Committee for that committee’s determination whether (a) an arbitrable issue exists, and (b) whether arbitration would be voluntary or mandatory.Where any party initially declines to mediate pending the Grievance Committee’s review of the arbitration request, the parties shall in all instances again be offered the opportunity to mediate following the Grievance Committee’s review. (Revised 11/23)
Boards may also offer disputing parties an opportunity to mediate prior to an arbitration request being filed. (Adopted 11/11)
NOTE: If a Board requires REALTORS® (principals) to mediate otherwise arbitrable disputes, there can be no allegation of a violation of Article 17 if a party refuses to mediate unless an arbitration request has been filed, the Grievance Committee has referred the arbitration request for hearing on a mandatory basis, and the party then refuses to mediate. (Adopted 11/11)
Conduct of Mediation Procedures: If, for any reason, any of the parties (or the Mediation Officer) is unable to participate on the date agreed, the procedure should be rescheduled to the earliest mutually acceptable date. Witnesses, if any, should be kept to a minimum. (Revised 11/03)
Realizing that a dispute already exists between the parties, the Mediation Officer should make every effort to encourage a conciliatory atmosphere while ensuring a full discussion of all pertinent facts. The complainant and respondent should be encouraged to appreciate each other’s position in the matter and to effect a solution that will eliminate the need for arbitration by the Board’s Professional Standards Committee. The parties can agree to a mutual resolution of the matter at any time during the mediation procedure. If, following a thorough discussion of all the pertinent facts, the parties are still unable to resolve the matter, the Mediation Officer may, at the Mediation Officer’s discretion, then make a recommendation. Any recommendation for resolution can be oral or in writing and will be provided to both parties at the conclusion of the mediation procedure. The parties can agree to the Mediation Officer’s proposed resolution at that time. If neither of the parties desires to give additional consideration to the Mediation Officer’s resolution, both parties will be given a specified period of time, not to exceed forty-eight (48) hours, to consider the resolution and to advise the Mediation Officer of their acceptance or rejection of it. If either of the parties rejects the proposed resolution, the mediation procedure will be deemed concluded and the matter will proceed to arbitration. Any party who does not respond to the Mediation Officer within seventy-two (72) hours will be deemed to have rejected the suggested solution and arbitration will proceed. (Revised 11/96)
NOTE: When the Board adopts the mediation procedures described in this Manual or develops similar procedures, they should be included in the Board’s Code of Ethics and Arbitration Manual in whole or by reference. (Revised 11/96)
Mediation Procedures
(1) Arbitration request received by the Board*
(2) Association Executive will advise parties of their mediation obligations and options to participate in mediation prior to review of the arbitration request by the Grievance Committee.
Send to complainant:
Request for Mediation form — Boards may prefer to complete this step by telephone rather than mail
Agreement to Mediate form
(Set time frame for completed and signed forms to be returned to the Board)
(3) Upon receipt of completed forms from complainant, send to respondent:
Notice of Request for Mediation form with attached copy of complainant’s completed Request for Mediation form — Boards may prefer to complete this step by telephone rather than mail
Agreement to Mediate form
Mediation Officer Selection form (should be sent to both complainant and respondent)
(Set time frame for completed and signed forms to be returned to the Board)
(4) Upon receipt of all completed forms, the Board may assign any Mediator not challenged to serve as the Mediation Officer.
Send to both complainant and respondent:
Notice of Selection of Mediation Officer form
(5) The Mediation Officer should contact the complainant and respondent directly to set an acceptable time and location for the mediation conference.
Send to both complainant and respondent:
Mediation Officer form letter confirming date, time, and location of conference.
(Adequate prior notice should be given parties for scheduling mediation conference—ten [10] days suggested)
(6)
- If the mediation conference successfully resolves the dispute:
Original signed Mediation Resolution Agreement (Form #A-17) should be forwarded to the Board by the Mediation Officer.
The Resolution Agreement should be kept in the file with all pertinent records pertaining to that case.
Both the complainant and respondent should receive a copy of the Resolution Agreement.
- If the mediation conference does not successfully resolve the dispute:
If the parties are unable to resolve their dispute, the Mediation Officer may make the determination that the parties have reached an impasse, and may recommend an equitable solution. The recommendation for resolution can be oral or in writing, and may be provided to both parties at the conclusion of the mediation procedure. (Set time frame for response from parties—not to exceed forty-eight [48] hours)
Any party who does not respond to the Mediation Officer within seventy-two (72) hours will be considered to have rejected the suggested solution.
Mediation Officer should advise the Board that the mediation conference has been terminated without resolution of the dispute.
Mediation Officer will send Termination of Mediation Conference form to Board.
Request for Arbitration will be forwarded to the Board’s Grievance Committee for review.
*Boards may also offer disputing parties an opportunity to mediate prior to an arbitration request being filed.
(Amended 11/12)
View and download mediation forms: