Can I Still Pursue Litigation If Mediation Or Arbitration Is Unsuccessful?

Can I Still Pursue Litigation If Mediation Or Arbitration Is Unsuccessful?

Real Estate Law: Can I Still Pursue Litigation if Mediation or Arbitration is Unsuccessful?

In the realm of real estate transactions, disputes can arise between buyers, sellers, landlords, tenants, contractors, and other parties involved in property matters. To resolve these conflicts efficiently and avoid the complexities of traditional court litigation, many parties turn to alternative dispute resolution (ADR) methods such as mediation and arbitration. While mediation and arbitration offer valuable benefits, there is always the possibility that these methods may not lead to a satisfactory resolution. In such cases, parties may wonder whether they can still pursue litigation to resolve their real estate disputes. In this article, we will explore the implications of unsuccessful mediation or arbitration and the potential avenues for pursuing litigation.

1. Understanding Alternative Dispute Resolution (ADR):


Mediation is a voluntary process in which a neutral third party, the mediator, facilitates communication between the disputing parties to help them reach a mutually acceptable resolution. The mediator does not make decisions or impose solutions but guides the parties through negotiations. Mediation is non-binding, meaning the parties are not obligated to accept any proposed resolution.


Arbitration, on the other hand, is a more formal process where a neutral third party, the arbitrator, hears evidence and arguments presented by the parties and issues a binding decision on the dispute. Arbitration can be either binding or non-binding, depending on the agreement of the parties.

2. Unsuccessful Mediation:

In the event that mediation does not lead to a resolution, the parties are not bound by any of the proposed settlement terms discussed during the mediation process. They retain the right to pursue other methods of dispute resolution, including arbitration or litigation.

3. Unsuccessful Arbitration:

The implications of unsuccessful arbitration depend on whether the arbitration was binding or non-binding:

Unsuccessful Non-Binding Arbitration:

If the arbitration was non-binding, the parties are not bound by the arbitrator’s decision, and they can pursue other methods of dispute resolution, including mediation or litigation.

Unsuccessful Binding Arbitration:

If the arbitration was binding, the decision of the arbitrator is legally enforceable, and the parties are generally required to abide by the arbitrator’s ruling. However, some jurisdictions may provide limited grounds for challenging or appealing a binding arbitration decision.

4. Pursuing Litigation After Unsuccessful ADR:

Mediation and Litigation:

If mediation is unsuccessful, the parties may choose to pursue litigation to have their dispute resolved in court. Mediation is non-binding, so the parties are not legally obligated to accept any proposed resolution.

Arbitration and Litigation:

If the arbitration was non-binding, the parties may proceed to litigation to have the dispute adjudicated by a court. On the other hand, if the arbitration was binding, the parties are generally bound by the arbitrator’s decision and must comply with the award. However, in some jurisdictions, there may be limited grounds for challenging or appealing a binding arbitration decision.

5. The Role of Agreements in ADR and Litigation:

Mediation and Arbitration Agreements:

Before engaging in mediation or arbitration, parties often enter into written agreements that outline the terms and conditions of the ADR process. These agreements may include provisions for confidentiality, the selection of the mediator or arbitrator, the rules governing the process, and whether the ADR is binding or non-binding.

Choice of Forum:

The agreement may also specify whether any dispute arising from the ADR process should be resolved through litigation and in which jurisdiction.

Choice of Law:

Additionally, the agreement may determine which laws govern the ADR process and any subsequent litigation.

6. Advantages of ADR and Litigation:

Advantages of ADR:

ADR methods, such as mediation and arbitration, offer several advantages, including:

Cost-Effectiveness: ADR is often less expensive than traditional litigation, as it typically involves fewer formalities and shorter timelines.

Confidentiality: Mediation and non-binding arbitration proceedings are usually confidential, protecting sensitive information from becoming part of the public record.

Preservation of Relationships: ADR can preserve relationships between parties, particularly in real estate transactions where ongoing business interactions may continue.

Control Over the Process: In mediation, parties have more control over the outcome and can explore creative solutions that may not be available in court litigation.

Advantages of Litigation:

Litigation, on the other hand, offers some distinct advantages, such as:

Binding Decision: In binding arbitration and court litigation, the decisions are legally binding and enforceable, providing a final resolution to the dispute.

Discovery Process: Litigation allows for extensive discovery, which enables parties to gather evidence and information to support their case.

Appellate Review: In court litigation, parties have the option to appeal an unfavorable judgment to a higher court, providing an additional layer of review.

7. Conclusion:

Alternative dispute resolution (ADR) methods, such as mediation and arbitration, provide parties involved in real estate disputes with valuable alternatives to traditional court litigation. These processes offer numerous benefits, including cost-effectiveness, confidentiality, and the preservation of relationships. However, if mediation or arbitration is unsuccessful or non-binding, parties may still pursue litigation to have their dispute resolved in court. The decision to proceed with litigation depends on various factors, including the nature of the dispute, the binding nature of the ADR process, and the preferences of the parties involved.

It is essential for parties to understand the implications of their chosen ADR method and to seek legal counsel to navigate the dispute resolution process effectively. Whether through mediation, arbitration, or litigation, finding a satisfactory resolution to a real estate dispute is crucial to preserving business relationships and achieving a fair outcome for all parties involved.

Disclaimer: The information provided in this article is for general informational purposes only and should not be construed as legal advice. The implications of unsuccessful ADR and the potential for pursuing litigation may vary based on the specific laws and regulations governing alternative dispute resolution and litigation in different jurisdictions. Parties involved in real estate disputes should seek legal counsel for advice specific to their circumstances.

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