National Association of REALTORS Dispute Resolution System (DRS)

National Association of REALTORS® Dispute Resolution System (DRS) provided as a service to customers and clients of members of the Central Oregon Association of REALTORS® (COAR)

Guide to Mediation

Request to Initiate Mediation

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When a Real Estate Dispute Arises First Call Your Broker or the Principal Broker of their firm

The decision to initiate mediation under the DRS Rules and Procedures should be made only after all attempts to negotiate an acceptable solution have been exhausted and a genuine effort was made to resolve your claim.

Your Broker or their Principal Broker can be instrumental in helping resolve conflicts and disputes. Talk with your Broker before you initiate mediation proceedings. Also, you may wish to discuss the matter with your attorney. Your attorney may be able to provide you with advice and counsel—and may be able to help you resolve the dispute without having to proceed to mediation.

When you have a fully executed Real Estate Sale Agreement published by Oregon Real Estate Forms, a Listing Contract or other written agreement that contains a Mediation Clause, and your Listing or Selling Broker is a member of COAR, you are entitled to participate in its Dispute Resolution System.

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Mail this Mediation Packet with any applicable attachments to:

CEO & Professional Standards Administrator Central Oregon Association of REALTORS®

2112 NE 4th Street Bend, OR 97701 541-382-6027 fax: 541-383-3020 [email protected] What is Mediation?

Mediation is a process used to resolve disputes. In mediation the parties to a dispute are assisted by a neutral third party called a “mediator.” The mediator facilitates discussions and negotiation with a goal toward reaching settlement, but is not empowered to impose a settlement on the parties. The mediator’s role is to enable the parties to work with one another to achieve a common goal – a mutually acceptable agreement. If agreement is reached, the mediator often assists the parties in reducing the agreement to writing.

Mediation Rules & Procedures

1. Agreement of Parties

These National Association of REALTORS® Dispute Resolution System (DRS) Mediation Rules and Procedures shall apply when the parties have agreed in writing to mediation under the DRS and your listing or selling Broker is a member of the Central Oregon Association of REALTORS®. Only by mutual written agreement of COAR and all parties to the claim, may any specific provision of these DRS Rules and Procedures by modified.

2. Initiation of Mediation

Any party, including REALTORS®, may initiate mediation under these DRS Rules and Procedures by completing, signing and mailing to the Central Oregon Association of REALTORS®, the “Request to Initiate Mediation”.

The Mediation Packet shall contain or be accompanied by the following information, to the extent known or readily available:

a) A fully executed Real Estate Sales Agreement, Listing Contact or other written agreement containing an agreement to mediate under DRS; b) The names, addresses and telephone numbers of the parties to the case including the name of every insurance company known to have received notice of the dispute or claim and the corresponding file or claim number; c) A simple and concise statement of the basis for your claim, and the amount of claim in damages or relief sought; d) A $300 non-refundable filing fee; check to be made out to COAR.

3. Time and Place of Mediation Conference

Within twenty (20) days of receipt of the written agreement to mediate signed by all parties, the Mediator will set the date, time and place for the Mediation Conference. Provided, however, such date shall not be more than sixty (60) days (if possible) from the date of COAR’s receipt of the DRS Mediation Packet, unless all parties agree otherwise, depending on availability of a Mediator. COAR will provide at least twenty (20) days advance notice of the Mediation Conference, unless all parties have agreed to a shorter time.

4. Conduct of Mediation Conferences

Prior to the Mediation Conference, the parties will be expected to produce all information reasonably required for the mediator to understand the issue/s presented. Such information will usually include relevant documents and written materials together with the identity of any voluntary witnesses and what information they could provide. At the Mediation Conference, the mediator will conduct orderly settlement negotiations. Parties at the Mediation Conference must have authority to enter into and sign a binding written agreement to settle the dispute. The mediator will be impartial in such proceedings and has no authority to force the parties to agree to a settlement.

5. Representation by Legal Counsel

Any party may be accompanied by and represented at the Mediation Conference by legal counsel. However, a party who intends to be represented at the Mediation Conference shall notify all parties including the assigned Mediator of such intent, in writing, at least ten (10) days in advance of the Mediation Conference. Listing an Attorney in the Mediation Packet satisfies the notification requirement. If a party brings their attorney to the Mediation Conference without first having provided advance written notice as required herein, and the other party is not represented, the unrepresented party shall have the right to continue the Mediation Conference for a reasonable period of time in order to secure legal representation.

6. Confidentiality

No aspect of the mediation shall be relied upon or introduced as evidence in any arbitration, judicial or other proceeding, including but not limited to:

a) Views expressed or suggestions made by a party with respect to a possible settlement of dispute; b) Admissions made in the course of the mediation; c) Proposals made or views expressed by the Mediator or the response of any party thereto.

No legal privilege shall be affected by disclosures made in the course of mediation.

Subject to ORS 36.220, all mediation communications that take place during the mediation process (including pre- and post-mediation communications) are confidential and not subject to disclosure for any purpose in any proceeding, including but not limited to judicial or administrative matters. Unless otherwise allowed under Oregon law, or expressly agreed to between the parties, disclosure of any records, reports or other documents received by or prepared by or at the direction of the Mediator expressly for or during the mediation process cannot be compelled by the parties, witnesses, attorneys or other participants to the mediation. Provided, however, public records, statements, memoranda, work products, documents or other material otherwise subject to discovery that were not prepared specifically for use in mediation, are not confidential. By any person’s participation in the mediation process they shall be conclusively presumed to have consented to this confidentiality provision. The Mediator shall not be compelled to disclose or testify in any proceedings as to any information, communication or representations made during the mediation process.

7. Mediated Settlement

All mediated settlements shall be reduced to writing, then dated and signed by all parties no later than ten (10) days after the conclusion of Mediation Conference.

8. Judicial Proceedings and Immunity

Neither the Mediator, COAR, the National Association of REALTORS® nor any member boards, or their respective agents, employees representative, contractors or attorneys shall be joined in any judicial proceedings or arbitration relating to any of the claims raised in the mediation under these DRS Rules and Procedures. Neither the Mediator, COAR, the National Association of REALTORS ® nor any of its member boards, or their respective agents, employees, representatives, contactors or attorneys shall be liable to any party for any act, error or omission in connection with any service or the operation of the DRS.

9. Mediation Fees

The filing party will pay to COAR a $300 non-refundable filing fee in order to implement the DRS. Two hours will be spent with a Mediator for this filing fee. Any additional hours spent beyond the two (2) hours will be billed at $150 per hour, divided by the two parties to the mediation.

10. Termination of Mediation

Please note that the failure or refusal to participate in mediation, to complete and file the necessary forms, pay the required filing or Mediator’s fees, or attend the scheduled Mediation Conference, may result in a termination of the mediation process by COAR. Such event may adversely affect your entitlement to prevailing attorney fees should arbitration be subsequently instituted.

11. Liability

Neither COAR nor its Mediators shall be civilly liable for any act or omission done or made while engaged in efforts to assist or facilitate mediation, unless done so in bad faith with malicious intent or in a manner exhibiting a willful, wanton disregard of the rights, safety or property of another. National Association of REALTORS® - Dispute Resolution System (DR) Central Oregon Association of REALTORS®

Request to Initiate Mediation

Sellers and buyers are encouraged to notify their REALTOR® before initiating mediation or upon notification that mediation has been commenced. COAR is required to notify the Brokers of all Companies identified below. Either the Listing Broker or the Selling Broker must be a member of the Central Oregon Association of REALTORS®.

Listing REALTOR®: ______Name Company

Selling REALTOR®: ______Name Company

PLEASE PRINT

1. Party Requesting Mediation:

CLAIMANT: ATTORNEY (if any):

Name ______Address ______City/State/Zip ______Phone ______Indicate One: □ Buyer □ Seller □ Broker/Sales Agent □ Builder/Contractor □ Other ______Describe

2. Do you have authority to enter into and sign a binding written agreement to settle this matter? □ Yes □ No

3. Has or will an insurance company been/be notified about this dispute?

If Yes, please identify the name, address and phone number of the insurance company and/or agent:

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4. Responding Party:

RESPONDENT/S:

Name ______Address ______City/State/Zip ______Phone ______Indicate One: □ Buyer □ Seller □ Broker/Sales Agent □ Builder/Contractor □ Other ______

(attach list of respondents if more than two)

5. Simple and concise statement of the basis for your claim against the responding party listed above (attach additional pages if necessary): ______

6. Amount of Claim $______and/or additional relief sought: ______(If seeking monetary damage an amount must be included, or explain specific action to be taken.)

For additional Responding Parties, please attach a sheet providing the same information as sought for RESPONDENT identified above. 7. Has either party initiated a lawsuit or arbitration in this case? □ Yes □ No

If Yes, please complete:

Trial/Hearing Date: ______Court Case #: ______Court ______County: ______Judge/Arbitrator ______

8. Voluntary Information Source/s: Do you anticipate bringing one or more individuals to the Mediation Conference as an information source for the mediation: □ Yes □ No If Yes, please complete: Name ______Company (if applicable) ______Address ______Phone ______Purpose of Attendance ______(For each additional source, please attach a sheet providing the same information as sought above.) COAR will not be responsible for notifying or scheduling the individual/s identified as Voluntary Information Source/s (VIS). This is your soul responsibility. If the other party objects to the presence of the VIS, the final decision shall be made by the Mediator. Provided, however, a VIS is not required to attend the Mediation Conference, and the Mediator cannot compel their attendance. If the VIS is a REALTOR®, you must first notify their Principal Broker to obtain consent. You must notify the Mediator no later than five (5) days before the scheduled Mediation Conference to confirm the attendance of your VIS. The Mediator shall notify all other parties. The Mediator may refuse to permit the attendance of any VIS not timely identified in accordance with these rules.

Signature/s ______Date ______

Print Name/s ______

In order for COAR to commence mediation under DRS, it must have timely received the following from all Claimants and Respondents:

1. Claimant/s’ non-refundable filing fee of $300 payable to COAR; 2. Claimant/s’ Request to Initiate Mediation form and Respondent/s’ Agreement to Mediate form; 3. Potential Mediator Conference Dates from Claimant/s and Respondent/s; 4. Fully executed copy of the Real Estate Sale Agreement, Listing Contract or other written agreement containing the mediation clause under DRS; and 5. Any other documentation Claimant/s or Respondent/s believe will be useful to the Mediator and parties in achieving a successful resolution of the Claim.