"Does Mediation Forfeit My Right to Trial?"

Answer: No.

I have pasted below a Question and Answer article which appeared in The San Francisco Chronicle a few weeks ago (but which originally appeared in 2006 since the author Robert Bruss was on vacation). This Q&A helps to explain that an agreement to submit a dispute to binding arbitration does involve waiving the parties' right to a court trial but that submitting a dispute to mediation (an entirely different process as detailed here and here) does not waive any such rights to a court trial or even to arbitration of the dispute. Read on...

By Robert Bruss, The San Francisco Chronicle
Q: In a recent article, you said it is not wise to sign a binding arbitration clause in a real estate sales contract. But I am confused how a person can agree in the contract to mediation of disputes, as you suggest, but not agree to binding arbitration if a dispute later arises. What alternative do you suggest to expensive court action?

A: A buyer or seller cannot be required in a real estate contract to agree in advance to binding arbitration, giving up their constitutional right to a jury trial, right to appeal, and court rules of evidence, without initialing or signing an arbitration clause in the sales agreement.

But many printed real estate sales contracts include mediation of disputes clauses, which do not require signing by the parties. However, mediation does not forfeit any legal rights, as does binding arbitration. If a party does not want to mediate disputes, which might arise, he can just cross out the printed mediation contract clause.

As I have often said, agreeing in a real estate contract to mediate future disputes is a good idea. It often saves costs, compared with court litigation, and mediation usually succeeds or fails within a day or two.

However, I recommend buyers and sellers not forfeit their legal rights by agreeing in advance to binding arbitration of future conflicts that might arise. If a dispute later arises, such as a home buyer discovers a serious defect that the seller allegedly failed to disclose, after the buyer sues the seller and mediation doesn't work, then the parties can agree to binding arbitration rather than a court trial.