Appendix V to Part
Ten
Mediation as a Service of Member Boards
Mediation
Options
Mediation
Forms
Although no party to an
arbitrable matter can be required to submit to mediation and mediation cannot
and 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. 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 11/03)
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. 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 Not Mandatory: It must be understood by all parties that participation
in mediation procedures is entirely voluntary. 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.)
Need for Adequate Notice: Although participation in mediation is not required
of the parties, 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 11/03)
Initiation of Mediation Proceedings:
Option 1: As specified in the arbitration procedures elsewhere in this Manual,
each request for arbitration should be referred to the Board’s Grievance Committee
for consideration as to whether the matter is appropriate for arbitration.
In the event the Grievance Committee determines that a matter is properly
arbitrable, that information should be provided to the Board Secretary (or
Board Executive Officer), who will then notify both the complainant and respondent
that the matter has been deemed arbitrable and that the Board’s mediation
procedures are available. The Board Secretary or a Mediation Officer will
inquire of each party as to whether they will participate in the mediation
procedures. If both parties respond affirmatively, the matter will be referred
to the selected and assigned Mediation Officer, who will contact the complainant
and respondent and establish a mutually convenient time and location for the
mediation.
Option 2: Alternatively,
the Secretary (or Executive Officer), upon receipt of a request for arbitration,
will inquire of all parties whether they desire to participate in mediation
prior to review of the arbitration request by the Grievance Committee. If
the parties agree, the matter will be referred to the Mediation Officer, who
will arrange a mutually convenient time and location for mediation. If 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. Where mediation is offered prior to review of an arbitration request
by the Grievance Committee, and one or more of the parties declines or the
mediation attempt is unsuccessful, the parties will not again be offered mediation.
If a party requests a second opportunity to mediate, a second mediation can
be scheduled at the discretion of the Association. (Revised 11/03)
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—Option
2
(To be Used for Mediation
Between REALTOR® Members)
(1) Arbitration request
received by the Board
(2) Executive Officer will inquire if the complainant and respondent wish
to mediate the dispute prior to consideration by the Board’s Grievance Committee.
Send to complainant:
Request for Mediation form (Option 2)—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 (Option 2) 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 a mutually 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) (a) 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.
(b) 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
(7) Request for Arbitration will be forwarded to the Board’s Grievance Committee
for review.
(Adopted 11/96)
Date: February 21, 2006
