Commercial Real Estate Disputes

Resolving disputes in mediation has multiple advantages. But, to reap the full benefits of mediation, choose the mediator with the appropriate skill set, enabling them to recognize the underlying issues leading to the conflict and to choose the best approach to your unique situation.

A good mediator has the following traits:

1. A non-judgmental approach. The judges must remain neutral during the process, but they eventually must side with one of the parties, resolving the dispute in their favor. On the other hand, the mediator stays neutral throughout the entire process without viewing the conflict from a judgmental point of view. Mediation does not involve decision-making, and it must not include judgmental assessment. Instead, mediators help the parties resolve the dispute, putting them in a decision-making position.

2. Active listening. A good mediator is always a good listener. Mediation requires a more or less passive role of the mediator in terms of engagement and dispute resolution. Although they should stay neutral and passive regarding decision-making, mediators must be active listeners, which involves alertness and compassion. The mediator must absorb every word to understand converging interests. Active listening is about asking questions and seeking clarifications – the mediator should actively seek true and accurate facts of the case. Attentive listeners can understand the underlying issues leading to the dispute and act accordingly to facilitate negotiations.

3. Mediators do not represent either party (unlike trial attorneys). The mediator is not obliged to act on behalf of anyone’s interests, nor do they refer to the parties as clients – they must have the same approach to both parties. Impartiality is vital for the mediator’s credibility because parties are more likely to trust the mediator they see as impartial. Besides, they have a greater chance of reaching a settlement and upholding it if they view the mediator’s efforts as neutral.

4. Knowledge of the underlying interests. A good mediator can quickly grasp the essence of the dispute, seeing underlying motivations and interests and guiding negotiations in the desired direction (toward settlement). A well-versed mediator will talk to the parties in private sessions, ask them questions, and identify their motivations behind the commercial real estate dispute. That understanding enables the mediator to conduct meaningful open discussions between the parties – otherwise, negotiations lead to a dead end.

5. Encouraging attitude. Mediators have different styles and philosophies (facilitative, evaluative, or transformative). The transformative approach involves active efforts to change positions. The evaluative and facilitative are more passive (focusing on encouragement and motivation). A good commercial real estate mediator should encourage changes instead of imposing them because commercial business relationships are sensitive to any control and regulation. The best settlement results from the free will – the mediator should encourage that freedom.