Arbitration and Mediation Article
The ombudsman’s role is primarily one of communication and conciliation, not adjudication. Ombudsmen do not determine whether ethics violations have occurred, or render an opinion on whether someone's claim has merit or speculate on the chances of success of the ethics or arbitration claim, rather they anticipate, identify, and resolve misunderstandings and disagreements before matters ripen into disputes and possible charges of unethical conduct.
Ombudsmen can field and respond to a wide variety of inquiries and complaints, including general questions about real estate practice, transaction details, ethical practice, and enforcement issues. Ombudsmen can also receive and respond to questions and complaints about members; can contact members to inform them that a client or customer has raised a question or issue; and can contact members to obtain information necessary to provide an informed response. In cases where an ombudsman believes that a failure of communication is the basis for a question or complaint, the ombudsman can arrange a meeting of the parties and facilitate a mutually acceptable resolution. Resolution of complaints If a matter complained of is resolved to the mutual satisfaction of all parties through the efforts of an ombudsman, the formal ethics complaint brought initially (if any) will be dismissed. Failure to comply with agreed upon resolution Failure or refusal of a member to comply with the terms of a mutually agreed on resolution shall entitle the complaining party to resubmit the original complaint or, where a formal complaint in the appropriate form had not been filed, to file an ethics complaint. The time the matter was originally brought to the board or association’s attention will be considered the filing date for purposes of determining whether an ethics complaint is timely filed. Referrals to the Grievance Committee or to state regulatory bodies Ombudsmen cannot refer concerns they have regarding the conduct of any party utilizing their services to the Grievance Committee, to the state real estate licensing authority, or to any other regulatory body. The prohibition is intended to ensure impartiality and avoid the possible appearance of bias. Ombudsmen are, however, authorized to refer concerns that the public trust may have been violated to the Grievance Committee.
Boards are required to offer mediation as a preliminary, voluntary alternative to arbitration. The Williamsburg Area Association of REALTORS® provides mediation services to its members to assist in the resolution of disputes.
Although no party to an arbitrable matter can be required to submit to mediation and mediation cannot and is not intended to be a substitute for the arbitration procedures, mediation can be a useful tool in resolving conflicts that occur in the real estate transaction. Mediation can resolve disputes, promote amicable resolutions and reduce the number of cases requiring a more formal and complex arbitration hearing.
It must be understood by all parties that participation in mediation procedures is entirely voluntary. The parties are offered the opportunity and encouraged to participate in the mediation process in good faith and encouraged to abide by the resolution. The parties to mediation should be aware that they may withdraw from the process at any point prior to reaching an agreement. If either of the parties rejects the proposed resolution, the mediation procedure will be deemed concluded and the matter will proceed to arbitration. However, if the parties agree to a settlement of the dispute and the settlement has been reduced to writing and has been signed by all parties, the matter is deemed resolved and cannot be the subject of a subsequent arbitration hearing.
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