Board’s Obligation to Offer Mediation

Q: I have a feeling that I’m about to be involved as a respondent in an arbitration at my local board over a procuring cause dispute. I’ve heard that if another REALTOR® files a request for arbitration with me, the local board has to offer mediation as an alternative. Is that true? If the complainant and I agree to mediation, but it ends up that we can’t resolve the dispute, will that be held against me or will the mediator just break the stalemate and make a ruling?

A: “Yes” to your first question – the local board must offer mediation. It is the policy of the National Association of REALTORS® that every board and association of REALTORS® offer mediation to their members. According to NAR, anecdotal information shows that mediation:

• clearly is less confrontational/adversarial than arbitration;
• encourages disputing parties to work amicably together to fashion mutually-acceptable solutions in a “win-win” environment;
• consumes substantially fewer volunteer, administrative, and financial resources; and
• resolves the majority of disputes between REALTORS® that would otherwise require arbitration.

Contact your local board or association of REALTORS® for information on how to initiate mediation. “No” to your second question – if you can’t resolve the dispute through mediation, it won’t be held against you (or the other party). The mediation process is confidential. So, evidence or information exchanged in the course of mediation may be used in a later arbitration only to the extent that it was obtained independent of the mediation process. Although the mediator may terminate the mediation if either party acts in bad faith, bad faith does not include failing to reach an agreement or to compromise further than a party believes appropriate. Additionally, the mediator will not break the stalemate and make a ruling. The primary role of the mediator is to facilitate communication. Mediators may not impose a solution upon parties. Mediators may, with the consent of the parties, offer settlement proposals or evaluations of likely outcomes at arbitration. If the mediation does not result in a settlement, the parties sign a “no settlement” form to be submitted to the board or association, and the arbitration process then either begins or continues as the case may be.