A key element in the practice of real estate is the contract. Experienced practitioners quickly become conversant with the elements of contract formation: Inquiry, invitation, offer, counteroffer, contingency, waiver, acceptance, rejection, execution, breach, rescission, reformation, and other words of art become integral parts of the broker's vocabulary.
Given the significant degree to which Article 3’s mandate for cooperation — coupled with everyday practicality, feasibility, and expediency — make cooperative transactions facts of life, it quickly becomes apparent that in virtually every real estate transaction there are actually several contracts which come into play. Setting aside ancillary but still important contracts for things such as mortgages, appraisals, inspections, title insurance, etc., in a typical residential transaction (and the same will be true in many commercial transactions as well) there are at least three (and often four) contracts involved, and each, while established independently of the others, soon appears to be inextricably intertwined with the others.
Each of these contracts is subject to similar hazards in formation and afterward. The maker’s (offeror’s) offer in any of these scenarios may be accepted or rejected. The intended recipient of the offer (or offeree) may counteroffer. There may be questions as to whether a contract was formed — e.g., was there an offer, was it accepted, was the acceptance on the terms and conditions specified by the maker of the offer — or was the “acceptance” actually a counteroffer (which, by definition, rejects the first offer). A contract, once formed, may be breached. These and other questions of contract formation arise on a daily basis.
There are several methods by which contractual questions (or “issues” or “disputes”) are resolved. In addition to the unfortunate possibility of civil lawsuits, two other methods are arbitration and mediation, both of which are provided by local REALTOR® boards and the state Association.
Arbitration and mediation are both valuable in resolving business disputes. Both are private and neutral, with expertise. But for many, mediation is an attractive alternative to arbitration.
| Mediation |
Arbitration |
| Low or no cost |
Moderate cost |
| Little delay |
Moderate delay |
| Win/win outcome |
Win/lose/split |
| Collaborative |
Adversarial |
| Maximum range of solutions |
Result limited to monetary award |
| Improves relationships |
May damage relationships |
To learn more and/or schedule a mediation or arbitration, contact your local board.
