Pre-Litigation Road Map for Real Estate Clients

Real Estate Law Litigation by Kathryn L. Holt

Most of the people who seek the help of a real estate attorney want to swiftly resolve a dispute they are experiencing. However, patience can be the name of the game when attempting to negotiate before a complaint has been filed. Often in the field of real estate litigation, the road from the beginning of representation to the filing of a complaint is a long one. This article will lay out what you can expect in the early days of representation, and what the likely steps will be between hiring a real estate lawyer and filing a complaint.

In most situations, the first step of the pre-litigation process is often a demand letter. This letter will outline your position in detail. It will include a bird’s eye view of the facts as well as the relevant law and is often sent shortly after you meet with your new attorney. These letters come in many forms and can include a demand for mediation or an instruction for further communication. They can contain a timeframe within which the other party must respond. The exact contents of the demand letter depend on the type of dispute and your preferences as the client.

After the letter is sent to the opposing party, we wait. Sometimes the receiving party reaches out immediately. Sometimes they do not reach out for days or weeks, but in the vast majority of cases a dialogue begins regarding resolution. At this stage the parties can begin settlement discussions. If that is the case, your attorney will communicate with either the other party’s attorney, or the other party themselves if they are not represented. Sometimes this process can include involving an insurance company and evaluating whether there is coverage for your specific issue. It is important to note that this process can last weeks or months depending on the matter. That is the nature of dispute resolution. While it can be discouraging, a negotiation that takes longer does not necessarily mean that the result will be poor. Patience can be key to success at this stage of the game.

If the parties fail to come to a resolution or a contract has made it mandatory, the parties may move into real estate mediation. Mediation is a voluntary proceeding where the parties prepare briefs and meet with a neutral mediator, who will try to facilitate an agreement. This neutral mediator is most often a retired judge or attorney with experience in the practice area relevant to the dispute. The mediator will spend time discussing the strengths and weaknesses of each party’s position and then act to facilitate a productive negotiation. Mediations can be scheduled very soon after the receipt of a demand letter, or they can be scheduled several months later depending on the type of dispute and availability of the parties. If mediation fails, the parties will often proceed to litigating the matter either by way of arbitration or the court system. However, this usually happens only after the parties have made some attempt to resolve the matter.

It is important to note that while the pre-litigation period may be lengthy, it could save you time and money in the long run by avoiding a lawsuit. It is important to remember that every dispute is different; while it is impossible to know the outcome at the beginning, you and your attorney can work together to make the best choices for you under the circumstances. If you have questions about what the pre-litigation process will entail or want to get started on resolving a dispute contact a local attorney for more information.

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