Whether or not you own real estate, disputes happen. Resolving those disputes through court litigation or arbitration can take a long time and cost a lot of money. Not to mention the intangible costs—the distraction, the extreme stress, the inconvenience, the self-blame, the opportunities lost while you’re fighting legal battles—that can be just as painful as the tangible ones, if not more so.
The good news is you don’t always have to go to court or arbitration to resolve your dispute. Virtually every conflict has the potential for resolution quickly (most within one day or less) and inexpensively…through mediation. Mediation is essentially a process in which litigants voluntarily meet face to face, usually in an office setting, with a neutral facilitator (the mediator) to try to resolve differences and reach a compromise of their own making.
I don’t care how “impossible” you think it is to settle your dispute—whether it’s because there’s too much money at stake or you’re too far apart with the other party or there are too many parties involved or the other side is too unreasonable or it’s all just too complicated—I’m here to tell you the mediation process not only has a phenomenally high success rate (over 80%!) but, at times, the process works almost like magic (and that’s coming from somebody who’s pretty cynical). Let me give you one of our recent success stories to show you what I mean.
Problem: We represented a group of investors who were locked in a multi-million dollar dispute with a lender who was in second position on their mixed-use property. In addition to the issues in dispute, the
timing was terrible. The market had recently tanked, the loan was past due, the investors could not pay off the loan and could not sell the property. On top of everything else, they owed almost $1 million in “default” interest and fees on top of the multi-million dollar principal. Worse still, the holder of the multi-million dollar loan in first position was threatening to foreclose due to the failure to pay delinquent property taxes. The situation was extremely challenging when the investors came to us.
Solution: We succeeded in getting all parties to agree to mediate, after an informal exchange of documents. During the mediation, and despite having demonstrated to the lender, in our Mediation Brief, that there were some serious flaws in the way the lender had gone about procuring this loan, we reached what appeared to be an insurmountable impasse. At that point, I asked the lender’s lawyer if I could speak directly to his clients because I was concerned our message was getting “lost in translation” by the lender’s lawyer to his client. I was able to quickly establish a very good rapport with the lender. I spoke to him
businessman to businessman, instead of lawyer to opposing party. I explained the irrefutable business reasons why giving my clients what they wanted was in his best interest. Within just a few hours, we succeeded in securing for our clients a complete loan workout and modification that provided many extraordinary benefits to our clients including, among other things:
· More money: We persuaded the lender to loan our
clients more than $1.5 million in additional funds to pay the back taxes
and provide for tenant improvements to fill the vacancies;
· More time: Our clients were given more than 5
years of additional time to pay off the loan;
· Reduced interest rate: We convinced the lender to agree to a
2 point reduction in the interest rate on the loan;
· Priority return: We got the lender to agree to put the
property and our clients’ interests before the lender’s. How?
By agreeing to defer monthly loan payments until after all
property operating expenses were met and after our clients received an
agreed return on their investment; and
· Clean slate:
The lender waived all accrued default interest and penalties on
With this creative resolution – an outcome that no court could ever have provided and that, without mediation, could have easily taken weeks or months to negotiate – our clients not only avoided losing their investment through foreclosure, but they were also given the opportunity to turn the property around and receive significant monthly income from the property. And the lender won by preventing the loss of the property to the holder of the first (which would have wiped out their second)…all in a confidential setting.
Mediation has many important advantages over arbitration and going to court. It’s quick. Most mediations take no more than one day. It’s far less expensive than arbitration or going to court. Unlike arbitration or court, a binding resolution of your dispute will never be forced upon you by some judge, jury, arbitrator, or even a mediator; you are always in control of your legal and financial destiny in mediation. Finally, the entire mediation process is confidential. That means that nothing that is prepared for mediation, and nothing that is said during the mediation, can be disclosed by anyone outside of the mediation itself. That’s a much better way to resolve disputes than in a public courtroom, where nothing is confidential.
If you find yourself in a dispute, we can help you in three ways. First, because we are skilled real estate and litigation attorneys with over 85 years of combined experience, and because Phil Diamond of this office is also a highly experienced and respected mediator, we’re uniquely qualified to assist you in preparing for mediation, and we can be there at your side during the entire process. Second, if you are already represented by counsel, Phil can provide mediation services for you through his separate mediation practice, Diamond Dispute Resolution. Third, if mediation is either not available in your situation or if your case falls into the minority of mediation attempts that fail to result in settlement, we are aggressive, creative litigators and we can represent you in arbitration or court.
If you’re encountering a problem on one of your deals or involved in a dispute, come to our Firm. You’ll get the special attention of me and our dedicated staff. We’ll go the extra mile to see that you receive the
maximum compensation and full justice you deserve. Every one of our clients is like family. We’ll keep you fully informed every step of the way and make sure you are part of the process. We firmly believe that you can’t do any better than having our firm represent you. Let us prove it to you.
If you have a dispute you’d like to discuss, please mention this blog post when you contact us and you’ll receive a free 15-minute consultation (a $125 value). Call 800-553-7626 or e-mail [email protected] or [email protected].