Based on his education, work experience and legal representation of individuals, professionals and businesses in the Construction and Real Estate industry for nearly 30 years (See Attorney Profile), attorney George Wolff also now offers his services to those parties and business as an independent and neutral Real Estate and Construction Mediator and Arbitrator, to help resolve disputes between parties that they have been unable to resolve themselves or with their attorneys, or through other settlement efforts.
Mediation is a usually voluntary process where the parties to a dispute or lawsuit, or their attorneys, use the intermediary services of an experienced neutral seasoned professional with professional experience in their line of business or industry to offer an independent neutral review of their legal and factual situations, with the goal of trying to guide or help them resolve their disputes or disagreements or lawsuits voluntarily together, without the excessive costs, time commitments, stress and uncertainties and risks of a Court or Jury Trial or Appeal, etc.
Mediation can be done at any time, from just after the dispute or disagreement has arisen, to before the lawsuit is filed, before or after trial, even during an appeal.
Mediation has the advantage that the parties can all agree on the solution to their dispute or disagreement and can negotiate the wording and exact terms of their settlement agreement, rather than have a stranger such as a Judge, Jury or Arbitrator define the decision and its terms and force or impose or force that decision on the parties.
This feature of mediation can be very important when the parties have ongoing business or personal relationships, or ongoing companies or contracts, where a protracted lawsuit can be very damaging to their continued involvement together for the future, and often can be devastating financially for all concerned.
While occasionally mediation sessions are joint, with all parties, their legal counsel and the mediator in a single conference room for some part of the medication session, most often the parties and their respective lawyers are separated into different rooms, with the mediator shuffling between the rooms to exchange information, questions, documents, and typically settlement offers and counteroffers.
The separation of the parties and their attorneys in different locations discourages rancor and personal disputes, insults, and so on, and allows the parties and counsel to think more clearly and rationally and less emotionally about their dispute, risks and costs, and possible solutions or compromises to resolve it.
Sometimes win-win solutions beneficial to both sides can be developed and achieved with the more clear-eyed rational thinking that such a process can encourage.
Under California law (but not necessarily under Federal law or the laws of other States) mediation sessions are confidential, and nothing said in mediation by anyone and no documents created for the mediation may be admitted as evidence in Court, and the parties and the mediator cannot be forced to testify about what was said in the mediation, unless all parties expressly agree.
This confidentiality protection enables the parties and attorneys to speak frankly, honesty and freely to each other and to the mediator, with the goal of hopefully achieving a full or partial settlement of the dispute, without fear that something said or done there could be used against them later in Court or elsewhere.
Mediation is highly favored and encouraged by the Courts at the State and Federal level, and is often highly successful (some say more than 90%), although sometimes more than one mediation session may be necessary to resolve some more complicated or adversarial disputes.
Binding Arbitration is an alternative to a trial before a Court or Jury, where an experienced neutral person with experience in the business or industry that the parties are engaged in is hired by both (or all) parties to a dispute to hear the evidence and witnesses from each side in a private and informal setting, much like a Court sitting without a jury would do.
The arbitrator, after hearing all the witness testimony and evidence from each side and reviewing any documents or legal briefs submitted, then issues a binding written decision which resolves the dispute and explains the reasoning behind the decision, much like a Judge would do in a Court trial.
However, the process is usually much faster than a Court proceeding or trial, which can drag on for years, even without an Appeal afterwards!
Unlike a decision by a Court or Jury, an arbitrator’s decision is usually final, and cannot be appealed, except where it can be shown that the arbitrator was biased, corrupt, did not hear all the evidence, etc.
However, in some circumstances the parties can all agree in advance of the arbitration to allow a Court to review some aspects of the arbitrator’s award. (Link to related Legal Article)
An arbitration award is usually binding on the parties, and typically can be entered and enforced as a Judgment by any Court with jurisdiction, including outside California.
Usually, therefore, arbitration is a quicker, less expensive, more final, and less stressful way to have your dispute resolved than going through a full trial, possible appeals, and the like, which call often take years.
And has the further advantage that the decision is made by someone with years of experience in the business or profession or industry out of which the dispute arises, rather than by a judge without such experience, or by largely randomly selected persons on a jury.
An arbitration is usually finally completed in months, rather than years.
While the parties to a dispute often have an attorney represent them in the arbitration hearings, there is no requirement to use an attorney, and in smaller disputes the parties often represent themselves.
Many Construction, Real Estate and other standard form contracts contain clauses which require the parties to arbitrate their disputes (sometimes after first attempting to settle their dispute in mediation), rather than litigating in Court.
The law makes sure that such contracts are reasonably fair to both sides, and not unconscionable or biased against one side over the other.
Even if a contract does not contain an arbitration provision or clause, or there is no contract between the parties, the parties can still all agree or stipulate in writing at any time to have their dispute resolved by an arbitrator, rather than by a trial in Court.
And regardless of whether their contract provides for a particular association to handle the arbitration proceedings, the parties also can agree to have it arbitrated by someone else outside that process, to save costs and filing fees, or for any other reason.
Mr. Wolff served as an arbitrator for the American Arbitration Association, on the State Public Works Contract Arbitration Panel of the State of California Office of Administrative Hearings, and for the San Francisco, Alameda and Marin County, Superior Courts and the U. S. District Court for the Northern District of California.
Our Mediation and Arbitration daily or hourly rates are typically much lower than what most larger mediation and arbitration associations require, and scheduling is usually quicker and more flexible.
Mediation and arbitration sessions can be scheduled anywhere in the San Francisco Bay Area and Northern California, and also in Southern and Central California as well.
For further information on having your Construction or Real Estate or other types disputes mediated or arbitrated by George Wolff, or if you have any questions on these topics, please call 415-788-1881, ext. 222, or Contact Us in an email.