Section 15 of the REPC: Mediation
January 29, 2019
Author: Kreg Wagner (UAR)
Often in my REPC classes I am asked about the mediation section in the REPC. These questions are typically as follows: “In Section 15 of the REPC, what checkbox do you recommend that my clients check? SHALL or MAY AT THE OPTION OF THE PARTIES?
I always answer by saying that I personally would check MAY AT THE OPTION OF THE PARTIES.
Now, does this mean that I am against or opposed to mediation? Absolutely not. Whenever a buyer and seller have a dispute that they cannot resolve, I STRONGLY recommend that they involve a mediator to help facilitate a resolution. So, if I strongly recommend mediation, then why do I advise checking MAY AT THE OPTION OF THE PARTIES, instead of SHALL?
The answer is simply this: by checking MAY AT THE OPTION OF THE PARTIES, a buyer or seller has greater flexibility to mediate AND/OR pursue more viable options given the specific circumstances.
For example, I have personally heard multiple times on the hotline disputes that a seller is deliberately ignoring a buyer’s request to mediate. It really goes without saying that mediation only works if you have willing participants. If MAY AT THE OPTION OF THE PARTIES is checked, then a buyer who is being ignored by the seller may move forward with other avenues to pursue remedies available by law.
I sincerely hope all your transactions are smooth and that you never have to mediate a dispute. However, just in case, please make sure you are discussing with your clients the implications of this section every time you write an offer or receive an offer.
If you have any questions about mediation or the REPC, feel free to call the UAR’s Legal Hotline at 801-676-5211 on Monday, Wednesday, or Friday from 8:30 a.m. to 4:00 p.m.